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THE PRESIDENT’S CONSTITUTIONAL DUTY TO 

FAITHFULLY EXECUTE THE LAWS 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

DECEMBER 3, 2013 

Serial No. 113–55 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

MARK AMODEI, Nevada 

RAUL LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 
(III) 

C O N T E N T S 

DECEMBER 3, 2013 

Page 

OPENING STATEMENTS 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 1 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 3 

WITNESSES 

Jonathan Turley, Shapiro Professor of Public Interest Law, George Washington University 

Oral Testimony ..................................................................................................... 11 

Prepared Statement ............................................................................................. 13 

Nicholas Quinn Rosenkranz, Professor of Law, Georgetown University Law 

Center and Senior Fellow in Constitutional Studies, Cato Institute 

Oral Testimony ..................................................................................................... 26 

Prepared Statement ............................................................................................. 28 

Simon Lazarus, Senior Counsel, The Constitutional Accountability Center 

Oral Testimony ..................................................................................................... 32 

Prepared Statement ............................................................................................. 34 

Michael F. Cannon, Director of Health Policy Studies, Cato Institute 

Oral Testimony ..................................................................................................... 41 

Prepared Statement ............................................................................................. 43 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Committee on the 

Judiciary ............................................................................................................... 6 

Material submitted by the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 56 

Material submitted by the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Member, Committee on 

the Judiciary ......................................................................................................... 65 

Material submitted by the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Committee on the 

Judiciary ............................................................................................................... 84 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Supplemental Material submitted by Michael F. Cannon, Director of Health 

Policy Studies, Cato Institute ............................................................................. 109 

Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Member, Committee on the Judiciary ......................................................................................................................... 152 

(1) 

THE PRESIDENT’S CONSTITUTIONAL DUTY TO 

FAITHFULLY EXECUTE THE LAWS 

TUESDAY, DECEMBER 3, 2013 

HOUSE OF REPRESENTATIVES

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Committee met, pursuant to call, at 10:21 a.m., in room 

2141, Rayburn Office Building, the Honorable Bob Goodlatte 

(Chairman of the Committee) presiding. 

Present: Representatives Goodlatte, Smith of Texas, Chabot, 

Bachus, Issa, King, Franks, Gohmert, Jordan, Poe, Marino, Gowdy, 

Labrador, Farenthold, Holding, Collins, DeSantis, Conyers, Nadler, 

Scott, Lofgren, Jackson Lee, Cohen, Gutierrez, Garcia, and Jeffries. 

Staff present: Shelley Husband, Chief of Staff & General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief Counsel; Allison Halataei, Parliamentarian & General Counsel; Zachary 

Somers, Counsel; Kelsey Deterding, Clerk; (Minority) Perry 

Apelbaum, Staff Director & Chief Counsel; Danielle Brown, Parliamentarian; Heather Sawyer, Counsel; and Tom Jawetz, Counsel. 

Mr. GOODLATTE. The Judiciary Committee will come to order. 

Without objection, the Chair is authorized to declare recesses of 

the Committee at any time. 

The Chair welcomes the members of the audience who are here, 

but any member who disrupts this meeting will be removed. And 

presently we do not have order in the hearing room. Members of 

the audience must behave in an orderly fashion or else they will 

be removed from the hearing room. Rule 11 of the House rules provides that the Chairman of the Committee may punish breaches of 

order and decorum by censure and exclusion from the hearing. So 

if there are members here who wish to remain, they should sit 

down immediately or leave the room immediately, or they will be 

escorted from the room. 

Today’s hearing is about the President’s role in our constitutional 

system. Our system of Government is a tripartite one, with each 

branch having certain defined functions delegated to it by the Constitution. The President is charged with executing the laws; the 

Congress with writing the laws; and the Judiciary with interpreting them. 

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

granted itself the extra-constitutional authority to amend the laws 

and to waive or suspend their enforcement. This raw assertion of 
2 

authority goes well 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 Congress’ 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, ‘‘the principles of a free constitution are irrevocably 

lost when the legislative power is dominated by the executive.’’ 

Although the President’s actions may not yet amount to the executive powers overtaking 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 picking and choosing which laws to enforce. But the 

Constitution does not confer upon the President the ‘‘executive authority’’ to disregard the separation of powers by unilaterally 

waiving, suspending, or revising the laws. It is a bedrock principle 

of constitutional law that the President must ‘‘faithfully execute’’ 

Acts of Congress. The President cannot refuse to enforce a law simply because he dislikes it. 

Certainly presidents have from time to time made broad claims 

of executive power. However, assertions of executive authority have 

traditionally been limited to the area in which presidential powers 

are at their strongest—Foreign affairs. The Obama administration, 

though, has been equally assertive in the realm of domestic policy, 

routinely making end runs around Congress through broad claims 

of prosecutorial discretion and regulatory actions that push executive power beyond all limits. Indeed, President Obama is the first 

President since Richard Nixon to ignore a duly enacted law simply 

because he disagrees with it. In place of the checks and balances 

established by the Constitution, President Obama has proclaimed 

that, ‘‘I refuse to take no for an answer,’’ and that ‘‘where Congress 

won’t act, I will.’’ 

Throughout the Obama presidency we have seen a pattern: 

President Obama circumvents Congress when he does not get his 

way. 

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 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 lan-
3 

guage 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 illegal 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 farreaching claims of executive power, if left unchecked, will vest the 

President with broad domestic policy authority that the Constitution does not grant him. 

Those in the President’s political party have been largely silent 

in the face of this dangerous expansion of executive power. But 

what would they say if a President effectively repealed the environmental laws by refusing to sue polluters or the labor laws by refusing to find violators? What if a President wanted tax cuts that Congress would not enact? Could he instruct the IRS to decline to enforce the income tax laws? President George H. W. Bush proposed, 

unsuccessfully, a reduction in the capital gains rate. Should he 

have, instead, simply instructed the IRS not to tax capital gains at 

a rate greater than 10 percent? 

The point is not what you think of any of President Obama’s individual policy decisions. The point is the President may not—consistent with the command that he faithfully execute the laws—unilaterally amend, waive, or suspend the law. We must resist the 

President’s deliberate pattern of circumventing the legislative 

branch in favor of administrative decision-making. We cannot allow 

the separation of powers enshrined in our Constitution to be abandoned in favor of an undue concentration of power in the executive 

branch. 

As James Madison warned centuries ago in Federalist No. 47, ‘‘the accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.’’ 

It is now my pleasure to recognize the Ranking Member of the 

Judiciary Committee, the gentleman from Michigan, Mr. Conyers, 

for his opening statement. 

Mr. CONYERS. Thank you. And good morning, top of the morning 

to the witnesses and to my colleagues on the House Judiciary Committee. 

The President’s constitutional duty to faithfully execute the laws 

would be an important issue worthy of a hearing by this Committee if there was any evidence that the President has, indeed, 

failed to fulfill his duty. But, unfortunately, it appears that some 

here view policy disagreements as constitutional crises and proof of 

possible wrongdoing. The fact is that disagreements or even allegations that a program is not being carried out the way Congress intended should not raise constitutional concerns. 

If some of my friends want to disagree with the Administration, 

it is, of course, certainly their right. But we should keep some perspective here and consider the following issues. 

To begin with, some of the Administration’s actions criticized by 

the majority are not really that much out of the ordinary. Allowing 

flexibility in the implementation of a new program, even where the 
4 

statute mandates a specific deadline, is neither unusual nor a constitutional violation. It is, rather, the reality of administering 

sometimes complex programs. 

This has been especially true in the case of health care legislation. The Affordable Care Act is not the first time implementation 

of a new law has not gone according to schedule. President George 

W. Bush, for example, failed to meet some of the deadlines in Medicare Part D even though it was legislation he strongly supported. 

And it is especially interesting that some Members who strenuously opposed the Affordable Care Act and who worked diligently 

to obstruct its implementation now complain that the President is 

unconstitutionally impeding the implementation of his signature 

legislative accomplishment. How interesting. 

Taking steps to deal with the realities of implementation of a 

complex program hardly constitutes a failure to take care that the 

laws are faithfully executed. It is, rather, part and parcel of doing 

just that. 

There have been Administrations in the past that have obstructed the implementation of laws they opposed, but no one is seriously contending that President Obama opposes the Affordable 

Care Act, ‘‘Obamacare,’’ or that his Administration’s actions constitute intentional obstruction of the law. And when in the past 

there have been legitimate concerns about delays in a law’s implementation, parties have turned to the Administrative Procedure 

Act. That act allows the courts to determine whether a delay is unreasonable and order appropriate relief. Notably, no one has alleged that such action is necessary here. Instead, critics of President Obama and his signature legislation allege a constitutional 

crisis, but no court has ever found delay in implementation of a 

complex law to constitute a violation of the Take Care Clause. 

Now, some of my colleagues seem to think that the exercise of 

prosecutorial discretion, a traditional power of the executive, is a 

constitutional violation. The decision, for example, to defer deportation of individuals who were brought to the United States as children who have not committed felonies or misdemeanors and do not 

pose a threat to public safety—so-called ‘‘DREAMers’’—is a classic 

exercise of such discretion. The Administration cannot legalize 

these individuals’ status without a basis in law, but the Administration’s decision to defer action against particular individuals is 

neither unusual nor unconstitutional. 

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. For example, in Heckler v. Chaney, the Court 

held that an agency’s refusal to institute proceedings shares to 

some extent the characteristics of a decision of a prosecutor in the 

executive branch not to indict, a decision which has 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 Laws be faithfully executed.’’ 

Finally, I hope we can distinguish between failing to execute the 

laws and following the explicit dictates of the law. Some here contend that the President’s decision not to defend the Defense of Marriage Act violated the Take Care Clause. In fact, the President 

made a judgment, subsequently vindicated by the United States 
5 

Supreme Court, that the act was unconstitutional, but while the 

case was pending, he continued to comply with the law. 

The President’s decision not to defend the law was not novel. Indeed, Congress itself recognized this possibility. Congress understood that sometimes the Administration’s duty to take care that 

the laws be faithfully executed might include recognizing that a 

particular statute is unconstitutional. The Constitution is, as we 

are told in Article 6 of the Constitution, the supreme law of the 

land. Presidents are required to follow it. 

So past Administrations have exercised their discretion not to defend a law that they have deemed unconstitutional. For example, 

the acting Solicitor General at the time, John Roberts, now the 

Chief Justice of the United States, refused to defend a law that he 

believed to be unconstitutional in the 1990 case of Metro Broadcasting v. the FCC. Chief Justice Roberts argued that a statute providing for minority preferences in broadcast licensing was unconstitutional. Despite Supreme Court precedent applying a more permissive standard of review, he argued that strict scrutiny applied. 

Senate legal counsel appeared as amicus curiae to defend the law 

and prevailed. 

Clearly, there were reasonable arguments that Chief Justice Roberts could have made in defense of the law. Yet, no one suggested 

that he violated the Constitution by arguing for the Court to strike 

that law down. His view was not vindicated in that case but may 

ultimately have resulted in a shift in the law, which makes it additionally clear that the Administration’s decision not to defend 

DOMA was neither unprecedented nor inappropriate. 

And so I join with all of the Committee in welcoming our witnesses, look forward to their testimony, and I yield back the balance of my time, Mr. Chairman. 

Mr. GOODLATTE. Thank you, Mr. Conyers. 

Without objection, all other Members’ opening statements will be 

made a part of the record. 

[The prepared statement of Ms. Jackson Lee follows:] 
6 

1ij!JU~~C nl' 'i{eptt'nCH.tatht(r, 

In\UtlrtwJt\U~, :fJ~E ~n~E.) 

CONGRESSWOMAN SHEILA JACKSON LEE 

TUESDAY, December 3,2011 

Me. Chainnan, I have noted the public's concern recently, and by Congress throughout 

the history of the country over separation of powers seen most prominently in the ability of the 

Executive Branch to justify the use of the military and the need for war. In those times the nation 

looks to Congress to guide us and to ensure that suitable due diligence is done before such an 

undertaking is started. This hearing though, will examine whether President Obama has fulfilled 

his constitutional duty to --take care that the Laws be faithfully executed." u.s. Const Art II, §3 

'-r congratulate our Republican friends' newly found concern for separation of powers 

and professed concerned for the faithful execution of the laws by the President 

"It is interesting to note, however, that this concern was nowhere to be found during the 

last Administration. We heard not a peep from them when the Bush-Cheney Administration 

sought to concentrate power in the executive branch of the federal government 

'-From conducting warrantless wiretaps to extraordinary rendition to secret prisons abroad 

to presidential bill signing statements, the Bush Administration revealed itself as unrelenting foe 

of the system of checks and balances and separated powers so carefully crafted by the Framers. 

,. And nowhere was that contempt for the constitutional structure that is part of the 

American birthright demonstrated more clearly than with respect to the abuse and misuse of 

presidential signing statements 

"Instead of vetoing laws he disapproved, President Bush would sign the law passed by 

Congress as if he accepted its constitutional validity and then when no one but Vice-President 

Cheney was watching he would issue a signing statement saying he will comply with the law 

only to the extent he felt legally bound to do so, which of course, he didn't 

"Presidential signing statements seek to alter Congress' primacy in the legislative process 

by giving the President's intention in signing the bill equal or greater standing to Congress' 

I P 
7 

intention in enacting it. This would be a radical, indeed revolutionary, change to our system of 

separated powers and checks and balances 

"In less than six years, President Bush issued more than 125 signing statements, raising 

more than 800 constitutional objections This is almost 500 more constitutional objections 

interposed in the 20 year period between 1981-2001 by the Reagan, Clinton, and first George 

Bush Administrations combined 

"Not coincidentally, President Bush's signing statements have challenged the 

constitutionality of extremely high-profile laws such as the reporting provisions under the USA 

PATRIOT Act of2005, and the McCain Amendment prohibiting torture 

"The president's signing statements essentially asserted that President Bush does not 

believe that he is bound by key provisions of the legislation and sought to further a broad view of 

executive power and President Bush's view of the "unitary executive," pursuant to which all the 

powers lodged in the Executive and administrative agencies by Congress is somehow 

automatically and constitutionally vested in the President himself" 

And I believe that this hearing will likely focus on 

Implementation of the Affordable Care Act ("ACA" or "Obamacare"), focusing on as I 

understand it 

A the Administration's July, 2013 announcement that it would delay for one year 

the ACA's "employer mandate," which requires large employers to offer their employees 

quality health insurance coverage or pay a penalty for failing to do so; 

B the provision of subsidies to help people buy insurance on the federal health care 

exchange in addition to subsidies for insurance bought on state exchanges; 

C The Administration's recent decision to allow health insurers to renew existing 

health insurance policies that do not meet some of the coverage requirements of the ACA 

so that individuals who had been notified that their policies were being canceled might 

re-enroll for another policy year before transitioning to a plan that complies fully with the 

ACA's requirements; and 

II The decision to protect certain young adults brought as children to live in the United 

States ("DREAlvIers") from immigration removal actions 

These are serious issues but I suspect that based on the Republican memorandum and the 

past three years which have produced over forty votes in the House to defund, render defunct, 

and othenvise repeal Obamacare-all to no avail-this will be an exercise in futility. I would 

like to welcome our witnesses-all constitutional scholars who today though are in the realm of 

politics 
8 

Michael F. Cannon, Director of Health Policy Studies, Cato Institute (Majority witness) 

Nicholas Rosenkranz, Professor of Law, Georgetown University Law Center (Majority 

witness) 

Jonathan Turley, Professor of Law, George Washington University (Majority witness) 

Simon Lazarus, Senior Counsel, Constitutional Accountability Center (Minority witness) 

Many on this Committee may recall that in Youngstown Sheet & Tube Co. v. Sawyer, the mill 

owners arbJUed that the President's order amounted to lawmaking The United State's 

government's position was that "order in question was made on findings of the President that his 

action was necessary to avert a national catastrophe which would result from the stoppage of 

steel production. And although the District Court's ruling was affirmed by the Supreme Court, I 

borrow from the dissent when I add that the President, in taking executive action via agency 

decisions, or other administrative strategies, is perfonning his duty under the "Take Care Clause 

of the Constitution 

And I think Mr. Lazarus had it right in his prepared testimony when he stated 

" ... All of these efforts to import the Constitution into what are in reality political and policy 

debates are rhetorical make-weights. They mock the text and original meaning of the Take Care 

clause. They nout long-established Supreme Court precedent applying the relevant constitutional 

provisions. And they contradict the consistent practice of all modern presidencies, Republican 

and Democratic, to responsibly implement complex and consequential regulatory programs. 

These critics fault the Obama Administration for making necessary adjustments in timing and 

matching enforcement priorities with resources and practical, humanitarian, and other 

exigencies. But exercising presidential judgment in carrying laws into execution is precisely 

what the Constitution requires. It is precisely what the framers expected, when they established a 

separate Executive Branch under the direction of a nationally elected President, and charged him 

to Take Care that the Laws be Faithfully Executed ... " 

While there have been infrequent and infamous examples in which one branch has defied 

the Court-the most prominent example being President Andrew Jackson's alleged statement 

following the Court's decision in Worcester v. Georg;a that "John Marshall has made his 

decision; now let him enforce it"-the other branches have almost unceasingly acquiesced, even 

in major disputes, to the Supreme Court's role In this case the Supreme Court held that 

Obamacare is the law of the land-something this Congress and to a great extent-the last onehave not acquiesced to the Supreme Court's role 

Me Chairman, fellow colleagues, I salute us for holding this hearing 

I look fonvard to hearing from our witnesses and I yield back the balance of my time 
9 

OBAMACARE SUCCESS STORIES 

1111/13: Teresa MclJsic~ Guest Column: '"Like Millions Of Others, I Did Try To Sign Up 

On Oct. 1, The First Day The Exchange '\las Open, And Like Most Americans I Found I 

Couldn't Get Past The First Page To Even Set Up An Account. So I Dropped It For Three 

W'eeks, Knowing I Had Until Mid-December For A Plan To Be Active On Jan. 1 Or Even 

Until March Of Next Year ... Last Monday I Revisited The Website Healthcare.Gov. I Was 

Able To Instantly Set lip An Acco"nt ... Compared To The Federal Tax Or Financial Aid 

Forms I Have Filled Out~ This Was A Breeze." "While government officials apologized 

profusely to Congress this week for the problems with signing up on the healthcare marketplace 

website, I had no problems creating an account and looking over the plan options. Maybe I 

should repeat that. No problems. Like millions of others, I did try to sign up on Oct. 1, the tirst 

day the exchange was open, and like most Americans I found I couldn't get past the tirst page to 

even set up an account. So I dropped it for three weeks, knowing I had until mid-December for a 

plan to be active on Jan, 1 or even until March of next year if I just wanted to make the open 

enrollment season. Last Monday I revisited the website Healthcare.gov. I was able to instantly 

set up an account that required mostly the names and birth dates of my family, how we were all 

related to one another, and whether we smoked or were U.S. citizens. (Social Security numbers 

were optional for the sign-up.) Compared to the federal tax or financial aid forms I have filled 

out, this was a breeze. Within 15 minutes I had access to the 36 health plans available in Tarrant 

County" [Fort Worth Star Telegram, i 111/13] 

10/31113: Associated Press: "The Scene In A City-Owned Building May Look Like A 

Hurricane Has Swept Through Houston: Nurses Giving Vaccine Shots~ People Scurrying 

Around With Files And Papers And Officials Leaning Over Computers Helping BlearyEyed Parents Fill Out Forms As Their Children Munch On Free Pretzels. But This Is No 

Hurricane. Instead, It Is Houston's Offensive To Reach More Than 1 :Million People Across 

600 Square Miles Who Don't Have Health Insurance And Connect Them With The New 

Federal Health Insurance Program That Began Accepting Applications This Month." '"The 

scene in a city-owned building may look like a hurricane has swept through Houston: Nurses 

giving vaccine shots, people scurrying around with files and papers and officials leaning over 

computers helping bleary-eyed parents fill out forms as their children munch on free pretzels. 

But this is no hurricane. Instead, it is Houstonls offensive to reach more than I million people 

across 600 square miles who donlt have health insurance and connect them with the new federal 

health insurance program that began accepting applications this month. The push is happening in 

one of the nation's reddest states, an example of the gap between the vitriolic political opposition 

to President BanIck Obamals signature initiative in some conservative bastions and the actual 

response to it by local ot1icials. 'This is the same stratebry we use to respond to hurricanes and 

public health disasters,' said Stephen Williams, director of Houston's Department of Health and 

Human Services, who has organized an effort to sign up as many uninsured people as possible." 

[Associated Press, 10/31 /13] 

10126113: W'FAA Dallas: "A Statewide Education And Outreach Event Focusing On The 

New Affordable Care Act Drew More Than 10,000 People To The Dallas Convention 

Center On Saturday.'~ "A statewide education and outreach event focusing on the new 
10 

Affordable Care Act drew more than 10,000 people to the Dallas Convention Center on 

Saturday. The Be Covered Texas event was hosted by Blue Cross and Blue Shield of Texas and 

more than 30 community partners to provide health services and health care information ... For 

Shundie Kizart, a working single mother with !\va kids, it was a no-brainer. She already has 

insurance for herself and her kids, but wanted to see what other options were out there. 'Get up 

and get the facts for yourself,' Kizart said, adding that she received one-on-one attention from 

health care professionals who knew more about the plan than she did," [WFAA Dallas, 10126/13] 

10/25/13: Reuters: "'I See That Every Day The System Is Getting A Little Bit Easier,' Said 

Daisy :Morales, Vice President Of Marketing And Outreach [At Community Health Choice 

In Houston1." "Community Health Choice in Houston, Texas said sales from the federal 

exchange had been slow. 'I see that every day the system is getting a little bit easier,' said Daisy 

Morales, vice president of marketing and outreach." [Reuters, 10/25/13] 

10122/13: Texas Public Radio: "Katy Horrell, Who Received Help Enrolling In A Health 

Care Plan, Knew There'd Be A Few Problems. 'There's Going To Be Ups And Downs In 

It,' She Said. 'And I Expect That, As Long As It Doesn't Put A Slam On Me Getting My 

Medical Taken Care Of Because My Life Depends On It.'" --Katy Horrell, who received help 

enrolling in a health care plan, knew there'd be a few problems. 'There's going to be ups and 

downs in it,' she said. 'And I expect that, as long as it doesn't put a slam on me getting my 

medical taken care of because my life depends on it. '" [Texas Public Radio, 10122/13] 

10/12113: Enroll America: "'After Comparing Plans, lNew Business OwnerJ Mark 

[Sullivan] Settled On A Bronze Option And Added Dental Insurance, He Will Receive An 

$82 Per Month Subsidy, Which Will Halve The Monthly Premium He Will Pay Down To 

$78." "Mark Sullivan, 31 - Austin, TX: After working for two years in Austin's tech sector, 

Mark has been eager to start his own business, but the risk of high health care costs if he left his 

job made him hesitate. That's why he was eagerly anticipating the new Health Insurance 

Marketplace that opened under the Affordable Care Act last week. Mark got started creating an 

account on healthcare.gov right away. After reviewing the plans available and comparing them 

to his COBRA continuation coverage premium, Mark is relieved to know that he can focus on 

growing his new business without the cost of health care cutting into money that should go into 

the company. Despite a few glitches along the way, Mark found an insurance plan that will 

provide him affordable coverage starting January I. Mark now feels confident focusing on the 

success of his new consulting business, saying health insurance is 'one less thing I have to think 

about' as he pours his time and talent into this next major career move. He also thinks the 

marketplace will malce it possible for more people to start new businesses and wants to share his 

success with the larger entrepreneurial community in Austin. After comparing plans, Mark 

settled on a bronze option and added dental insurance. He "Will receive an $82 per month subsidy, 

which will halve the monthly premium he "Will pay down to $78. While his new startup will 

require a lot of personal expense early on, if profits grow faster than he projects, his subsidy may 

end up being a bit lower by the end of the year. That's no concern for Mark, since even without 

the tax credit, his total premium is still much more affordable than the private plans he had been 

able to find on the individual market. As Mark says, 'being able to pay back the subsidy at the 

end of the year would be a welcome situation,' because it would mean his investment in charting 

his own path is paying off." [Enroll America Press Release, [0112;'L;] 
11 

Mr. GOODLATTE. We welcome our panel of witnesses today, and 

if you would all please rise, we will begin by swearing you in. 

[Witnesses sworn.] 

Mr. GOODLATTE. Let the record reflect that all of the witnesses 

responded in the affirmative. Thank you. 

And I will now begin by introducing our witnesses. 

Our first witnesses is Jonathan Turley, the Shapiro Professor of 

Public Interest Law at George Washington University Law School. 

Professor Turley is a nationally recognized legal scholar who has 

written extensively in areas ranging from constitutional law to 

legal theory to tort law. He has published over 3 dozen academic 

articles and over 750 articles in newspapers, including The New 

York Times, USA Today, and The Wall Street Journal. Professor 

Turley has been recognized as the second most cited law professor 

in the country. 

Our second witness is Nicholas Rosenkranz, a professor of law at 

Georgetown University Law Center. Professor Rosenkranz has 

served and advised the Federal Government in a variety of capacities, including as a law clerk to Supreme Court Justice Anthony 

Kennedy, and as an attorney advisor to the Justice Department’s 

Office of Legal Counsel. He has published numerous scholarly articles, including the ‘‘Subjects of the Constitution,’’ which is the single most downloaded article about constitutional interpretation in 

the history of the social science research network. 

Our third witness is Simon Lazarus, a senior counsel with the 

Constitutional Accountability Center. He is a member of the Administrative Conference of the United States and during his career 

has served as the public policy counsel for the National Senior Citizens Law Center as a partner at Powell Goldstein and as Associate 

Director of President Carter’s White House domestic policy staff. 

Mr. Lazarus has written articles that have appeared in law journals, as well as publications such as The Atlantic, The Washington 

Post, and The New Republic. 

Our final witness is Michael Cannon, the Cato Institute’s Director of Health Policy Studies. He has been recognized as an influential expert on the Affordable Care Act. Mr. Cannon has appeared 

on ABC, CBS, CNN, and Fox News and has written articles that 

have been featured in numerous newspapers, including The Wall 

Street Journal, USA Today, and the Los Angeles Times. He is also 

the co-editor of a book on replacing the Affordable Care Act and the 

co-author of a book on health care reform. 

I would like to thank all of the witnesses for their appearance 

today. Each of your written statements will be entered into the 

record in its entirety. I ask that each witness summarize his or her 

testimony in 5 minutes or less. To help stay within the time frame, 

there is a timing light on your table. When the light switches from 

green to yellow, you will have 1 minute to conclude your testimony. 

When the light turns red, it signals that the witness’ 5 minutes 

have expired. And we will turn first to Professor Turley. Welcome. 

TESTIMONY OF JONATHAN TURLEY, SHAPIRO PROFESSOR OF 

PUBLIC INTEREST LAW, GEORGE WASHINGTON UNIVERSITY 

Mr. TURLEY. Thank you, Mr. Chairman, Ranking Member Conyers, Members of the Judiciary Committee. It is a great honor to 
12 

be invited to speak with you today about the meaning of the Take 

Care Clause. You will have to forgive my voice. I am getting over 

a cold, but I hope to make it through this without having a 

coughing fit. 

This is obviously a difficult area of constitutional interpretation. 

As the Ranking Member pointed out, this is not the first time that 

we have dealt with this question. 

It is also difficult for some of us who happen to agree with the 

President’s policies, which I do. In fact, I voted for him previously. 

However, in a Madisonian system, it is often more important 

how you do something than what you do. And the reason this is 

such an important hearing is that the bedrock of our Constitution 

remains the separation of powers. It is often misunderstood as 

some type of conflict between the branches. It is really a protection 

of liberty. It allows for issues that divide us to be cycled through 

a system in which factional interests can be transformed. Even 

though all branches are equal in the Madisonian system, the Congress is the thumping heart of that system. It is where issues that 

are divisive are transformed into majoritarian decisions. It is the 

very reason that our system has survived so well. It brings stability 

to the system. 

Benjamin Franklin used to say or liked to say that God helps 

those that help themselves. In our system, the Madisonian system, 

the Constitution helps those branches that help themselves. It is 

designed to give each branch the ability of self-protection, of selfdefense, and a great deal rides on the use of that power. 

In my view, some of the questions we are going to talk about 

today are close questions, things like Internet gambling, drug enforcement. I think you can have credible arguments on the Administration side, but some of them I believe are not close questions. 

I believe the President has exceeded his brief. 

The President is required to faithfully execute the laws. He is not 

required to enforce all laws equally or commit the same resources 

to them. But I believe the President has crossed the constitutional 

line in some of these areas, which I address in my testimony. 

What I want to start in my opening statement is to emphasize 

that this is not a turf fight between politicians. Rather, this goes 

to the very heart of what is the Madisonian system. If a President 

can unilaterally change the meaning of laws in substantial ways or 

refuse to enforce them, it takes off line that very thing that stabilizes our system. I believe that Members will loathe the day that 

they allowed that to happen. This will not be our last President. 

There will be more Presidents who will claim the same authority. 

When I teach constitutional law, I often ask my students what 

is the limiting principle of your argument. When that question is 

presented to this White House, too often it is answered in the first 

person, that the President is the limiting principle, or at least the 

limiting person. We cannot rely on that type of assurance in our 

system. 

So the greatest danger of nonenforcement orders is not what it 

introduces to a tripartite system but what it takes away. What it 

does is it allows for these issues that divide us to be resolved unilaterally. We do not have a dialogue anymore if someone can step 

in and make the legislative process simply an option as opposed to 
13 

a binding stage or requirement. It is here in Congress that factional interests coalesce and convert. This is the transformative 

branch. It is different from the other branches. And that is what 

makes this so dangerous. 

What Madison did is he created a type of Newtonian orbit of 

branches. In fact, he was very interested in Newton’s physics when 

he wrote much of the early writings. There is a belief that these 

are three branches that exist in orbit. They are held together by 

their gravitational pull. It is a delicate balance, but it is one that 

protects individual liberty. 

Federalist No. 51 is one of the most cited sources for Madison’s 

views. It is in that writing that he encouraged branches to be on 

guard for the encroachment of their powers. For decades, this Congress has allowed its core authority to drain away. I have written 

a lot about the rise of what is called the ‘‘fourth branch,’’ this expanding number of Federal agencies that are acting increasingly 

independently, even defining their own jurisdiction. If that trend is 

to continue and the President’s power is to continue to expand, 

Congress will be left like a marginal line on the constitutional 

landscape, a sad relic of what was once a tripartite system of equal 

branches. 

There are times like this one of bitter, intractable divisions, but 

the Members of this body are tied by a covenant of faith, an article 

of faith. And it is found in Article 1 that says that all legislative 

powers herein granted shall be vested in the Congress of the 

United States. It is upon that covenant that we should not divide 

by parties and we should stand firmly for the separation of powers. 

[The prepared statement of Mr. Turley follows:] 

Prepared Statement of Jonathan Turley, Shapiro Professor of 

Public Interest Law, George Washington University Law Center 

Chairman Goodlatte, Ranking Member Conyers, and members of the Judiciary 

Committee, my name is Jonathan Turley and I am a law professor at George Washington University where I hold the J.B. and Maurice C. Shapiro Chair of Public Interest Law. It is an honor to appear before you today to discuss the constitutional 

concerns raised by recent nonenforcement polices and the President’s duty to faithfully execute the law of the United States. 

The issue before the Committee is clearly a difficult one. It is often difficult to 

separate the merits of the underlying policies from the means used to achieve them. 

It so happens that I agree with many of the goals of the Administration in the various areas where the President has circumvented Congress. However, in the 

Madisonian system, it is often more important how you do things than what you 

do. We have long benefited from a system designed to channel and transform factional interests in the political system. When any branch encroaches upon the authority of another, it not only introduces instability into the system but leaves political issues raw and unresolved. However, to paraphrase one of Benjamin Franklin’s 

favorite sayings, the Constitution helps those branches that help themselves. Each 

branch is given the tools to defend itself and the Framers assumed that they would 

have the ambition and institutional self-interest to use them. That assumption is 

now being put to the test as many members remain silent in the face of open executive encroachment by the Executive Branch. 

While I believe that the White House has clearly ‘‘exceeded its brief’’ in these 

areas, this question of presidential nonenforcement has arisen periodically in our 

history. In the current controversy, the White House has suggested an array of arguments, citing the interpretation of statutory text, agency discretion, or other rationales to mask what is clearly a circumvention of Congress. It also appears to be 

relying on the expectation that no one will be able to secure standing to challenge 

such decisions in court. Finally, there is no question that the President as Chief Executive is allowed to set priorities of the administration and to determine the best 

way to enforce the law. People of good faith can clearly disagree on where the line 
14 

1 I testified before Congress last year on the controversy surrounding these recess appointments. See Executive Overreach: The President’s Unprecedented ‘‘Recess’’ Appointments Before the 

H. Comm. on the Judiciary, 112th Cong. 35–57 (2012) (statement of Jonathan Turley, Professor, 

The George Washington University Law School) [hereinafter Executive Overreach]. I also address the controversy at length in two forthcoming law review articles. See Jonathan Turley, 

Recess Appointments in the Age of Regulation, 93 B.U. L. Rev. 1523 (2013); Jonathan Turley, 

Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in 

Constitutional Interpretation, 2013 WIS. L. REV. (forthcoming fall 2013); see also Jonathan 

Turley, Op-Ed., Recess Appointments: President as Ruler, USA TODAY, Feb. 15, 2012, at 7A. 2 5 U.S. (1 Cranch) 137, 177 (1803). 

is drawn over the failure to fully enforce federal laws. There is ample room given 

to a president in setting priorities in the enforcement of laws. A president is not 

required to enforce all laws equally or dedicate the same resources to every federal 

program. Even with this ample allowance, however, I believe that President Barack 

Obama has crossed the constitutional line between discretionary enforcement and 

defiance of federal law. Congress is given the defining function of creating and 

amending federal law. This is more than a turf fight between politicians. The division of governmental powers is designed to protect liberty by preventing the abusive 

concentration of power. All citizens –Democratic or Republican or Independent— 

should consider the inherent danger presented by a President who can unilaterally 

suspend laws as a matter of presidential license. 

In recent years, I have testified and written about the shift of power within our 

tripartite government toward a more Imperial Presidential model. Indeed, I last testified before this Committee on the assertion of President Obama that he could use 

the recess appointment power to circumvent the Senate during a brief intrasession 

recess.1 While I viewed those appointments to be facially unconstitutional under the 

language of Article I and II (a view later shared by two federal circuits), I was 

equally concerned about the overall expansion of unchecked presidential authority 

and the relative decline of legislative power in the modern American system. The 

recent nonenforcement policies add a particularly menacing element to this pattern. 

They effectively reduce the legislative process to a series of options for presidential 

selection ranging from negation to full enforcement. The Framers warned us of such 

a system and we accept it—either by acclaim or acquiescence—at our peril. 

The current claims of executive power will outlast this president and members 

must consider the implications of the precedent that they are now creating through 

inaction and silence. What if a future president decided that he or she did not like 

some environmental laws or anti-discrimination laws? Indeed, as discussed below, 

the nonenforcement policy is rarely analyzed to its natural conclusion, which leads 

to a fundamental shift in constitutional principles going back to Marbury v. Madi- son.2 The separation of powers is the very foundation for our system; the original 

covenant reached by the Founding Generation and passed on to successive generations. It is that system that produces laws that can be truly said to represent the 

wishes of the majority of Americans. It is also the very thing that gives a president 

the authority to govern in the name of all Americans. Despite the fact that I once 

voted for President Obama, personal admiration is no substitute for the constitutional principles at stake in this controversy. When a president claims the inherent 

power of both legislation and enforcement, he becomes a virtual government unto 

himself. He is not simply posing a danger to the constitutional system; he becomes 

the very danger that the Constitution was designed to avoid. 

I. THE SEPARATION OF POWERS WITHIN THE TRIPARTITE SYSTEM

A. Factions and the Legislative Process. 

One of the greatest dangers of nonenforcement orders is not what it introduces 

to the tripartite system but what it takes away. The Framers created three ‘‘equal’’ 

branches but the legislative branch is the thumping heart of the Madisonian system. It is the bicameral system of Congress that serves to convert disparate factional interests into majoritarian compromises. In this sense, Congress is meant to 

be a transformative institution where raw, often competing interests are converted 

by compromise and consensus. One of the most striking aspects of the recent controversies involving presidential nonenforcement is that they involved matters that 

were either previously before Congress or actually under consideration when President Obama acted unilaterally. 

The role of the legislative process in stabilizing the political system is key to the 

success of the American system. Madison saw the vulnerability of past governmental systems in the failure to address the corrosive effects of factions within a 

population. The factional pressures in a pluralistic nation like the United States 

would be unparalleled and Madison understood that these factions were the expres-
15 

3THE FEDERALIST NO. 10, 78 (James Madison) (Clinton Rossiter ed., 1961). 

4See generally, Turley, Age of Regulation, supra. 5 7 Sir Edward Coke, Reports 65, quoted in Roscoe Pound, The Spirit of the Common Law 

5 (1921) at 61. 6 Id. 

7 Id. 

sion of important political, and social, and economic interests. As Madison explained, ‘‘liberty is to faction what air is to fire, an ailment without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential 

to political life, because it nourishes faction than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive 

agency.’’ 3 Congress is where these factional interests coalesce and convert in an 

open and deliberative process. 

The point of this background discussion is that the loss caused by the circumvention of the legislative branch is not simply one branch usurping another. Rather, 

it is the loss of the most important function of the tripartite system in channeling 

factional interests and reaching resolutions on matters of great public importance. 

The importance of this central function of Congress is magnified when the country 

faces questions upon which there is great division. Ironically, these are the same 

areas where presidents are most likely to issue nonenforcement orders due to opposition to the underlying legislation. Consider illegal immigration. There are few 

issues that are more divisive today. The immigration laws are the product of prolonged debates and deliberations over provisions ranging from public services to 

driver’s licenses to ICE proceedings to deportations. Many of these issues are considered in combination in comprehensive statutes where the final legislation is a multivariable compromise by legislators. Severity in one area can at times be a tradeoff for leniency in another area. Regardless of such trade-offs, the end result is by 

definition a majoritarian compromise that is either signed into law by a president 

or enacted through a veto override. The use of executive orders to circumvent federal legislation increases the shift toward the concentration of executive power in 

our system and the diminishment of the role of the legislative process itself. It is 

precisely what the Framers sought to avoid in establishing the tripartite system. 

B. The Royal Prerogative and the Faithful Execution of Federal Law. 

Juxtaposed against this legislative power is the Chief Executive. The Framers created a Chief Executive with a relatively short term of four years and clearly defined 

powers to fit within this system of shared government. Despite the recent emergence of an uber-presidency of increasingly unchecked powers, the Framers were 

clear that they saw such concentration of power to be a danger to liberty. Indeed, 

the separation of powers is first and foremost a protection of liberty from the dangers inherent in the aggregation or aggrandizement of power.4 The Constitutional 

Convention and subsequent ratification conventions are replete with statements on 

the need to carefully confine the Chief Executive to enumerated powers and to specifically safeguard the powers of the legislative branch in the control of the purse 

and the creation of new laws. 

At issue in today’s hearing is in many ways the first issue that arose in the creation of the office of a president. The Framers were intimately familiar with English 

history and law. The suggestion of a president immediately produced objections over 

the dangers of abuse and unilateral action. This debate occurred against the backdrop of over 150 years of tension with the English monarchy that can be traced to 

the confrontation of Sir Edward Coke and James I. That confrontation had some interesting parallels to the current debate. At issue was not the circumvention of the 

legislative but the judicial branch. James claimed the right to remove cases from 

the court for his own judgment. When various people objected, James noted ‘‘I 

thought law was founded upon reason, and I and others have reason as well as the 

judges.’’ 5 Modern presidents in nonenforcement policies claim that same basis in 

reason—adjusting legal authority to a more equitable or more efficient reality. However, in the case of James I, Coke objected that ‘‘natural reason’’ does not make for 

good laws or legal analysis. Rather, law is a form of ‘‘artificial reason and judgment’’ 

or ‘‘an art which required long study and experience before that a man can attain 

to the cognizance of it.’’ 6 Even in the face of a treason charge, Coke maintained 

that, ‘‘the king ought not to be under any man, but he is under God and the law.’’ 7

The principle articulated by Coke drew the distinction between the King and the 

law—the latter which is made separate from the King and governs the King. It was 
16 

8See Julius Goebel, Jr., Ex Parte Clio, 54 Colum. L. Rev. 450, 474 (1954); David Gray Adler, 

The Steel Seizure Case And Inherent Presidential Power, 19 Const. Commentary 155, 164 (2002). 9This quote is from Jefferson’s Draft of a Fundamental Constitution for Virginia. Adler, supra, 

at 164 (citing Charles Warren, The Making of the Constitution 177 (Harvard U. Press, 1947)). 10Max Farrand, 1 The Records of the Federal Convention of 1787 at 62–63 (Yale U. Press, 

1911) (Edmund Randolph describing a ‘‘national executive . . . with power to carry into execution the national laws . . . [and] to appoint to offices in cases not otherwise provided for.’’); see 

also Adler, supra, at 164. 11Farrand, supra, at 65; Adler, supra, at 164–65. 12Farrand, 1 Records at 62–70; Adler, supra, at 165. 13 Id. at 70. 14 Id. at 171; Adler, supra, at 165. 

the rejection of what has been called the ‘‘royal prerogative.’’ 8 This rejection was 

first seen in the state constitutions in crafting the powers of Governors and later 

manifested in the drafting of the new federal Constitution. For example, Thomas 

Jefferson wrote in 1783 with regard to the Virginia Constitution that ‘‘By 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).’’ 9 Jefferson’s statement reflects the same Cokean distinction—now a mantra for American framers in 

defining the new concept of executive power. 

The earliest references to executive power or the presidency in the Constitutional 

Convention refer to the execution of federal law—affirming the idea that the executive must enforce the law established by the legislative process. Indeed, it was the 

introduction of the Virginia Plan that most clearly cast this executive model.10

Roger Sherman stated this most clearly in describing ‘‘the Executive magistracy as 

nothing more than an institution for carrying the will of the Legislature into effect.’’ 11 Likewise, James Wilson defended the model of an American president by 

assuring his colleagues that ‘‘did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive powers. Some of these prerogatives 

were of a Legislative nature.’’ 12

Reflecting these views, and the view of Framers like Madison that the chief executive must only be given power that is ‘‘confined and defined,’’ 13 the first draft of 

the Take Care Clause read ‘‘it shall be his duty to provide for the due and faithful 

execution of the Laws.’’ 14 That language then became, with the report of the Committee of Detail, ‘‘he shall take care that the laws of the United States be duly and 

faithfully executed.’’ The final language of the Committee of Style was refined further into ‘‘The executive power shall be vested in a president of the United States 

of America . . . He shall take care that the laws be faithfully executed.’’ What is 

most striking about this process is how little the language actually changed—reflecting a general consensus on limiting the office to the execution– as opposed to the 

creation– of laws. 

While the line between legislation and enforcement can become blurred, this view 

is generally reflective of the functions defined in Article I and Article II. The Take 

Care Clause is one of the most direct articulations of this division. The Clause 

states ‘‘[The President] shall take Care that the Laws be faithfully executed . . . ’’ 

U.S. Const. art. II, § 3, cl. 4. It is one of the clearest and most important mandates 

in the Constitution. The Framers not only draw the distinction between making and 

enforcing laws, but, with the enforcement of the law, the Framers stressed that the 

execution of the laws created by Congress must be faithfully administered. The language combines a mandate of the execution of laws with the qualifying obligation 

of their faithful execution. 

The constitutional obligation contained in the Take Care Clause is amplified by 

the oath that a president takes as a pre-condition for assuming power as Chief Executive under Section 1 of Article II. Indeed, the order of these references is interesting. In order to assume office, a president must ‘‘solemnly swear (or affirm) that 

[he] will faithfully execute the office of President of the United States, and will to 

the best of my ability, preserve, protect and defend the Constitution of the United 

States.’’ U.S. CONST. art. II, § 1, cl. 7. The Take Care Clause appears later in Section 3. This section happens to refer to the legislative function of Congress in stating 

that ‘‘from time to time give to the Congress information of the state of the union, 

and recommend to their consideration such measures as he shall judge necessary 

and expedient.’’ Id. Notably, the section affirms the right of a President to ask Congress for legislative action that he deems to be necessary. The clause then affirms 

the obligation of the President to faithfully execute those laws created by Congress. 

It is equally significant that the clause following the obligation to faithfully execute 

the laws is the clause allowing for the impeachment and removal of presidents. 
17 

15 Jonathan Turley, Op-Ed., The Rise of the Fourth Branch of Government, WASH. POST (May 

24, 2013), at C1; see also Turley, supra, Age of Regulation, at 1542–61. 16Turley, supra, Age of Regulation, at 1533; WALTER E. VOLKOMER, AMERICAN GOVERNMENT

231 (11th ed. 2006) (citing Bruce D. Porter, Parkinson’s Law Revisited: War and the Growth of 

American Government, 60 PUB. INT. 50, 50 (1980)). In 1816, the federal system employed 4837 

employees. Deanna Malatesta, Evolution of the Federal Bureaucracy, in 1 A HISTORY OF THE

U.S. POLITICAL SYSTEM: IDEAS, INTERESTS, AND INSTITUTIONS 373, 380 tbl.1 (Richard A. Harris 

& Daniel J. Tichenor eds., 2010). 17 Anne Joseph O’Connell, Vacant Offices: Delays in Staffing Top Agency Positions, 82 S. CAL. L. REV. 913, 936 (2009). 18 As the number of federal regulations has increased, Congress has shifted the adjudication 

of many disputes between citizens and their government to administrative courts tied to individual agencies. The result is that a citizen is 10 times more likely to be tried by an agency 

than by an actual court. In a given year, federal judges conduct roughly 95,000 adjudicatory 

proceedings, including trials, while federal agencies complete more than 939,000. Turley, supra, 

Age of Regulation, at 1533; Anne Joseph O’Connell, Vacant Offices: Delays in Staffing Top Agency Positions, 82 S. Cal. L. Rev. 913, 936 (2009). 

The import of these clauses is that the President can seek legislative changes and 

even call Congress into session, but it remains the prerogative of Congress to decide 

what laws will be enacted (subject to presidential signature or veto override). 

The most obvious meaning of faithful execution is that the President must apply 

the laws equally and without favoritism. Favoritism is clearly shown in the failure 

to enforce the laws against friends or political cronies. However, it can also apply 

more widely to favored groups or political allies. Merriam-Webster defines ‘‘faithful’’ 

as ‘‘having or showing true and constant support or loyalty.’’ In this controversy, 

this true and constant support is to the laws themselves. It is worth noting that 

this is not loyalty tied to the ‘‘law’’ in general—possibly inviting a more nuanced 

interpretive response to what specific laws serve or disserve the law in general. The 

use of the plural form encompasses the laws referenced in Article I as the product 

of Congress. It is those laws that the President is bound to execute faithfully under 

Article II. 

C. Nonenforcement Orders and the Rise of the Fourth Branch. 

The current controversy over the nonenforcement of federal law transcends the insular issues of particular statutes or regulations. The American governmental system is being fundamentally transformed into something vastly different from the intentions of the Framers or, for that matter, the assumptions underlying the constitutional structure. As I recently discussed in print,15 we are shifting from a tripartite to a quadripartite system in this age of regulation. The Administrative State 

that is credited with so many advances in public welfare has also served to shift 

the center of gravity in our system to a fourth branch of federal agencies. As a result, our carefully constructed system of checks and balances is being negated by 

the rise of the sprawling departments and agencies that govern with increasing autonomy and decreasing transparency. At the same time, we have seen a rapid 

growth of executive power, particularly since 9–11, where the President is asserting 

largely unchecked authority in many areas. 

When the Framers created the tripartite system, our federal government was 

quite small. In 1790, it had just 1,000 nonmilitary workers. In 1962, there were 

2,515,000 federal employees. Today, we have 2,840,000 federal workers in 15 departments, 69 agencies and 383 nonmilitary sub-agencies.16 Indeed, these numbers can 

be themselves misleading since much federal work is now done by contractors as 

part of ‘‘downsizing’’, but the work of the agencies has continued to expand. Moreover, technological advances have increased the reach of this workforce. With the 

expansion of the government has come a shift in the source of governing rules for 

society. Today, the vast majority of ‘‘laws’’ governing the United States are not 

passed by Congress but are issued as regulations, crafted largely by thousands of 

unnamed, unreachable bureaucrats. To give one comparative measure, one study 

found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.17 Adding to this dominance are judicial rulings giving agencies heavy deference in their interpretations of laws under 

cases like Chevron. In the last term, this Supreme Court added to this insulation 

and authority with a ruling that agencies can determine their own jurisdictions — 

a power that was previously believed to rest with Congress. In his dissent in Arlington v. FCC, Chief Justice John Roberts warned: ‘‘It would be a bit much to describe 

the result as ‘the very definition of tyranny,’ but the danger posed by the growing 

power of the administrative state cannot be dismissed.’’ 

With agencies increasingly performing traditionally legislative and judicial functions,18 the nonenforcement of federal law exacerbates the shift away from the origi-
18 

19 Christopher N. May, Presidential Defiance of ‘‘Unconstitutional’’ Laws xiv (1998). 20 In many cases, presidents used signing statements to interpret the laws compatible with 

their view of constitutional limits. 21 Indeed, some have argued that the Administration got it wrong and that there is no duty 

to enforce or to defend. See Neal Devins and Saikrishna Prakash, The Indefensible Duty To Defend, 112 Colum. L. Rev. 507, 508–509 (2012) (‘‘Given President Obama’s belief that the DOMA 

is unconstitutional, he should neither enforce nor defend it.’’). 22 Recommendation that Dep’t of Justice Not Defend Constitutionality of Certain Provisions 

of Bankr. Amendments and Fed. Judgeship Act of 1984, 8 Op. O.L.C. 183, 194 (1984). 23 Indeed, advocates of this presidential power insist that courts cannot be deemed as supreme 

in the interpretation of laws since ‘‘[f]ederal courts only have jurisdiction over cases or controversies, meaning that they cannot issue Article III judgments or opinions when they are not 

deciding cases or controversies. Yet there will be many situations, many questions, where federal courts cannot opine because there will be no case or controversy.’’ Devins & Prakash, supra, 

112 Colum. L. Rev. at 530. Indeed, it is true that the executive branch must engage in interpretations as part of its enforcement of laws and, particularly with the narrowing of standing in 

nal calibration of the tripartite system. Federal agencies are becoming practically 

independent in their operations in assuming new forms of regulatory law and adjudications. The refusal to execute those laws enacted by Congress would serve to 

marginalize the legislative branch further and make the federal government even 

less dependent on or responsive to that branch. 

II. NONDEFENSE ORDERS, PRESIDENTIAL PRIORITIZATION POLICIES, AND SIGNING STATEMENTS

It is important to distinguish between the various ways that presidents can oppose laws, which can blur the line between nonenforcement and inadequate enforcement. While a president does not have authority to negate or amend laws, there is 

overlap between the branches in different functions. Clearly, for example, the President is allowed to set goals in the execution of laws that place certain public programs above others in priority. No area of the law has one-hundred percent enforcement. There are discretionary actions that can include staffing and resource allocations with impacts on the level of enforcement in a given area. Before delving further into the constitutionality of nonenforcement, three types of executive decisions 

are important to distinguish. 

A. Nondefense Orders. 

The nondefense orders arise when presidents decide that their administrations 

will not defend a challenged law in court. These decisions are relatively rare and 

highly controversial. Even defenders acknowledge that such a decision should only 

be considered in circumstances where a president feels that enforcement of a law 

would conflict with his duty to uphold the Constitution. Indeed, one study showed 

that between 1974 and 1996, presidents objected to the constitutionality of roughly 

250 laws but did not refuse to defend them.19 Despite these reservations, Presidents 

Ford, Carter, Reagan, George H.W. Bush, and Clinton did not refuse to defend such 

laws.20

While the duty to defend would seem to be naturally subsumed under the duty 

to enforce, the Obama Administration draws a distinction between the two duties. 

Thus, it stated an intent to enforce the law while refusing to defend it. It was a 

curious distinction for many since continued enforcement would require that the law 

be defended in challenges.21 The Justice Department previously adopted a narrow 

exception to the rule that the ‘‘courts, and not the Executive, finally to decide 

whether a law is constitutional’’ and that the nondefense of a law would 

impermissibly create a barrier to judicial review.22 Unless the law impedes executive power, the Justice Department stated that it would defend laws so long as are 

not ‘‘clearly unconstitutional.’’ That would seem to demand more than simple disagreement with lower courts or adherence to a new or unestablished interpretation 

of the Constitution. 

In light of the foregoing, the Administration’s decision that it would not defend 

the Defense of Marriage Act (DOMA) was a classic example of a nondefense policy. 

The timing of the decision, however, was curious given the Administration’s defense 

of the law for years and the President’s own public ambivalence over same-sex marriage. Thus, this was not a statute that was treated as facially invalid by this president, and it was supported (and signed into law) by another Democrat, Bill Clinton. 

Nevertheless, while belated, the Obama Administration announced that it could no 

longer in good faith support a law that it deemed unconstitutional. It notably took 

this position after previously enforcing the law, leading many to question a decision 

to abandon the law ‘‘mid-stream’’ without any clear advocate with standing to argue 

the law’s merits.23
19 

federal cases, many of these decisions go unchallenged. However, for those of us concerned about 

the rise of the Fourth Branch, this only increases the concentration of power in the Executive 

Branch and further undermines the balance in the tripartite system. 24http://www.justice.gov/opa/pr/2011/February/11-ag-223.html. 25 Id. 26 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). 27 United States v. Windsor, 133 S. Ct. 2675 (2013). 28 I have repeatedly argued to Congress that the narrow rules concerning standing are increasingly preventing worthy constitutional challenges from being heard. I have the honor of 

representing both Democratic and Republican members of Congress who challenged President 

Obama’s unilateral decision to attack Libya’s capitol and armed forces. Jonathan Turley, Members of Congress Challenge Libyan War in Federal Court, JONATHAN TURLEY (June 15, 2011), 

http://jonathanturley.org/2011/06/15/members-of-congress-challenge-libyan-war-in-federal-court/. 29Windsor, 133 S. Ct. at 2688. 

The decision of the Administration was equally notable in basing its nondefense 

decision on a position that had never been embraced by the Supreme Court. The 

Administration stated that ‘‘the President and [the Attorney General] have concluded that classifications based on sexual orientation warrant heightened scrutiny 

and that, as applied to same-sex couples legally married under state law then, from 

that perspective, there is no reasonable defense of DOMA.’’ 24 While the Administration acknowledged that a lower standard of review had been applied in prior cases, 

it insisted that ‘‘neither of those decisions reached, let alone resolved, the level of 

scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.’’ 25

While I take the same view as to gay rights, it is not a view that had ever secured 

a majority of the Supreme Court or even most lower courts. Thus, the Administration was refusing to defend a law based on an interpretation that had thus far remained unsupported by direct precedent. Indeed, the ultimate decision in Windsor 

was a close one with a 5–4 opinion, and the basis for the decision was more nuanced 

than the one indicated by the Administration. In adopting a nondefense position, the 

Obama Administration was establishing precedent that Presidents could refuse to 

defend laws based on unaccepted legal interpretations. This would lead to the question of whether a president could maintain a nondefense postures even with a legal 

position rejected by lower courts but never rejected by the Supreme Court. 

My strongest objection was the failure of the Administration to avoid the untenable position of leaving a federal law without an advocate. That produced a standing 

dilemma that should never have been allowed to arise. The fact is that there are 

strong arguments on both sides of this litigation. While I have long been a supporter 

of same-sex marriage, I felt that the standing barriers created in the recent Hollingsworth 26 and Windsor 27 cases were grossly unfair to the critics of same-sex 

marriage and equally inimical to the legal system.28 It is particularly troubling 

when this law was signed by a prior president who clearly viewed it (as did Congress) to be a constitutional act. The Court clearly saw the Administration’s actions 

as undermining both the Judicial and Legislative branches: 

‘‘if the Executive’s agreement with a plaintiff that a law is unconstitutional 

is enough to preclude judicial review, then the Supreme Court’s primary 

role in determining the constitutionality of a law that has inflicted real injury on a plaintiff who has brought a justiciable legal claim would become 

only secondary to the President’s. This would undermine the clear dictate 

of the separation-of-powers principle that ‘‘when an Act of Congress is alleged to conflict with the Constitution, ‘[i]t is emphatically the province and 

duty of the judicial department to say what the law is.’’’ . . . Similarly, 

with respect to the legislative power, when Congress has passed a statute 

and a President has signed it, it poses grave challenges to the separation 

of powers for the Executive at a particular moment to be able to nullify 

Congress’ enactment solely on its own initiative and without any determination from the Court.’’ 29

While the Supreme Court resolved the standing problems in Windsor on prudential 

grounds, the untenable position created by the Administration should have been 

avoided by the selection of outside counsel to assume the burden of defending the 

law. While obviously this would have been an action taken in furtherance of the 

statute by the Administration, it would have allowed the Administration to convey 

its opposition to the statute while, in the interests of both Congress and the rule 

of law, ensuring that both sides were adequately represented. 

Putting aside the timing and status of the DOMA defense, there remains a principled reason why a President, as well as an Attorney General, may feel that the 

defense of a statute is fundamentally at odds with his duty toward the Constitution. 
20 

30See Criminal Prosecutions for Financial Institution Fraud Continue to Fall, TRAC Reports, 

Syracuse University, available at http://trac.syr.edu/tracreports/crim/267/. 31See, e.g., Andrew Cohen, Sen. Leahy: Fed Shouldn’t ’Waste Time’ on State Marijuana Laws, 

Atlantic, Sept. 3, 2013. 32 2011 Yearbook of Immigration Statistics, published by the Office of Immigration Statistics 

under the Department of Homeland Security (table 39). 33 Id. 34See generally Presidential Signing Statements Under the Bush Administration: A Threat to 

Checks and Balances and the Rule of Law?: Hearing Before the H. Comm. on the Judiciary, 

110th Cong. 7, 9 (2007). 35T.J. Halstead, Cong. Research Serv. Report for Cong., Presidential Signing Statements: 

Constitutional and Institutional Implications 2 (2007), http://www.fas.org/sgp/crs/natsec/ 

RL33667.pdf. 36 Christopher N. May, Presidential Defiance of ‘‘Unconstitutional’’ Laws 73 (1998). 

For example, if Congress passed a new Sedition Act or a law establishing an official 

religion, a president could claim a good-faith basis for viewing the law as conflicting 

with his constitutional duties. While (as noted above) the law should be defended 

in the interests of all sides being presented for judicial review, a president can decline to directly defend the law. In such cases, the president is caught on the horns 

of a constitutional dilemma, and the appointment of outside counsel is appropriate 

to allow the presentation of arguments in favor of the law. After all, the Executive 

Branch has consistently opposed efforts of Congress to defend laws in court as a 

usurpation of Executive authority. It should not fight to both bar Congress from 

such arguments while declining to perform that role to the detriment of these laws. 

B. Prioritization Policies. 

Every President has faced accusations of slow-walking or under-enforcing laws 

that he has opposed. Ronald Reagan was accused of undermining a host of environmental laws through the appointment of officials like James Watt and Anne 

Gorsuch. Likewise, Syracuse University recently found a sharp reduction of prosecutions for financial institution fraud from over 3,000 in 1991 to just 1,365 in 2011.30

That reduction in the Obama Administration is not deemed a constitutional violation since such cases are heavily imbued with prosecutorial discretion. Indeed, members of Congress often suggest that presidents should not ‘‘waste time’’ on enforcing 

some laws.31

Immigration is again an excellent example of such controversies. Modern presidents have long made deportation a lower priority for enforcement than prosecuting 

violent illegal immigrants and other provisions. The numbers of such deportations 

have varied dramatically with George W. Bush deporting a total of 2,012,539 or 

251,567 per year, while Bill Clinton deported with an average annual rate of 

108,705.32 During the same period of time, Obama (with 395,774 per year) has actually deported more individuals per year than his predecessor.33 The level of deportations, however, remains a discretionary decision of an Administration and courts 

tend to leave disagreements on the level of enforcement as a political question for 

the legislative and executive branches to resolve. As discussed below, this is in contrast to orders effectively suspending portions of federal immigration law as part of 

a policy change of the Administration. 

C. Signing Statements. 

There has already been much discussion of signing statements, particularly during the Administration of George W. Bush.34 The majority of signing statements are 

uncontroversial in that they amplify policies or celebrate accomplishments or reaffirm objectives connected to the legislation. However, some signing statements have 

been used to inform agencies of an interpretation that seems at odds with the language and intent of Congress—often after an Administration has failed to get its 

way with the legislative branch. Signing statements may merge with nonenforcement orders when a president claims a provision is unconstitutional and unenforceable. 

James Monroe is generally credited with the first signing statement.35 Like many 

controversial practices, it started in a rather routine and harmless fashion with 

Monroe stressing how the law was to be administered.36 Given his confrontational 

and at times imperial approach to the presidency, it is not surprising that the first 

defiant signing statement came with Andrew Jackson who did not want a road built 

from Detroit to Chicago. Jackson instructed his Administration to build the road but 

to stop before Chicago. Such statements were condemned at the time on the grounds 

that they violated the separation of powers and usurped the authority of the legislative branch. One of the most interesting early confrontations occurred between 

President John Tyler and Speaker of the House, John Quincy Adams. When Tyler 

wrote a signing statement rejecting certain provisions of a political apportionment 
21 

37 Am. Bar Ass’n, Task Force on Presidential Signing Statements and the Separation of Powers Doctrine 7 (2006). 38 In striking down the legislative veto in Chadha, the Court noted 

that ‘‘11 Presidents, from Mr. Wilson through Mr. Reagan, who have been presented 

with this issue have gone on record at some point to challenge congressional vetoes as 

unconstitutional.’’ 462 U.S. 919, 942 fn. 13 (1983). 

39Letter from Thomas Jefferson to Abigail Adams (July 22, 1804), in 1 THE ADAMS–JEFFERSON LETTERS 274, 275–76 (Lester J. Cappon ed., 1959); see also Saikrishna Bangalore 

Prakash, The Executive’s Duty To Disregard Unconstitutional Laws, 96 Geo. L.J. 1613 (2008). 40 272 U.S. 52 (1926). 

bill, Adams rejected the signing statement as an ‘‘extraneous document’’ that constituted a ‘‘defacement of the public records and archives.’’ 37 Indeed, Adams was 

right. Such statements are extraneous and do not constitute ‘‘law.’’ They, however, 

have such an effect when a president uses them to order the disregard or effective 

line veto of a duly enacted law. 

The most significant transformation of these statements came with Ronald 

Reagan. Then Attorney General Ed Meese sought to make such statements integral 

rather than extraneous by ensuring the West Publishing Company would print such 

statements with these laws as if they were a binding amendment or interpretation 

of the laws. The Supreme Court was viewed as undermining the authority of Congress further in INS v. Chadha and later cases by referring to signing statements 

and casually noting that the president will use such statements to decline to enforce 

certain objectionable provisions in laws.38 Soon, presidents were adding hundreds 

of such statements to ‘‘Executive legislative history’’ accounts as if they were an addendum to legislation. 

To the extent that signing statements order the nonenforcement of legislation, it 

raises serious constitutional questions. Some signing statements have led to later 

reversals as in Reagan’s dispute over the Competition in Contracting Act of 1984 

or congressional reversals as in the HIV-positive personnel provision of the National 

Defense Authorization Act for Fiscal Year 1996 in the Clinton Administration. To 

the extent that these disputes are not resolved through inter-branch compromise, 

they should be resolved through judicial review (though, again, the dysfunctionally 

narrow standing rules can inhibit such review). Where the signing statements establish nonenforcement orders, we are left with a fundamental challenge to legislative 

authority. These confrontations can be made worse by the perfect constitutional 

storm of a signing statement that imposes a nonenforcement order, which in turn 

results in a nondefense order in litigation. 

George Bush most dramatically diverted from his predecessors by issuing signing 

statements that ‘‘interpreted’’ statutes in ways that effectively amended or negated 

provisions. Ironically, one of the greatest critics of such statements was Barack 

Obama, who pledged to end the practice as unconstitutional. Yet, Obama would be 

criticized for not only continuing such statements but actually barring enforcement 

by agencies. 

D. Nonenforcement Orders. 

The three branches are set in a tripartite system designed to hold each in a type 

of Newtonian orbit. Under this system, no branch ideally has enough power to govern alone—they are forced into cooperative agreements and coexistence. Nonenforcement orders challenge this arrangement by imposing a type of presidential veto extrinsic to the legislative process. The legitimacy of such orders has long been challenged as an extraconstitutional measure. 

Yet, since Thomas Jefferson, Presidents have asserted the discretion not to enforce laws that they deemed unconstitutional. Jefferson took a stand against the Sedition Act that was used for many blatant abuses against political enemies in the 

early Republic. Jefferson cited his oath to protect the Constitution compelling him 

to act to ‘‘arrest [the] execution’’ of the law at ‘‘every stage.’’ 39 Jefferson’s stand represented the strongest basis for nonenforcement in a law that was used against political opponents and free speech. However, many presidents object to the constitutionality of a law, often in defense of expansive views of executive power. Those 

presidential arguments have resulted in rejection before the Supreme Court—reaffirming objections that presidents are negating legislative authority in violation of 

the separation of powers. 

Other presidents would follow suit, particularly in resisting claimed intrusions on 

executive authority. President Wilson refused to comply with a law barring his removal of postmasters without Senate approval. While three justices (including Brandeis and Holmes) dissented, the Administration prevailed in Myers v. United 

States.40 However, presidents have also been wrong in such judgments. This was 
22 

41Gerald Ford, Statement on the Federal Election Campaign Act Amendments of 1974 (Oct. 

15, 1974), http://www.presidency.ucsb.edu/ws/?pid=4464#axzz2gIvcVm5z. 42 Buckley v. Valeo, 424 U.S. 1 (1976). 43 487 U.S. 654 (1988). 44 497 U.S. 547 (1990). 45 515 U.S. 200 (1995). 46Memorandum for the Honorable Abner J. Mikva, Counsel to the President, Nov. 2, 1994 

(found at http://www.justice.gov/olc/nonexcut.htm). 47 Id. 48 Not surprisingly, there has been a series of opinions out of the Executive Branch supporting 

a president’s right to refuse to execute laws. For example, Attorney General Civiletti insisted 

that ‘‘Myers holds that the President’s constitutional duty does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day 

that they are declared unconstitutional by the courts.’’ The Attorney General’s Duty to Defend 

and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55, 59 (1980). 49Letter from Eric H. Holder, Jr., Att’y Gen. of the United States, to Hon. John H. Boehner, 

Speaker of the House (Feb. 23, 2011) at 5. 

the case with Gerald Ford, who refused to enforce the 1974 amendment to the Federal Election Campaign Act of 1971, which placed legal limits on the campaign contributions. Ford vetoed the law on first amendment grounds, but Congress overrode 

the veto. Ford then refused to enforce those provisions 41 and then Robert Bork argued against the FECA provisions before the Court. However, the Court rejected 

Ford’s arguments on that part of the law.42

Likewise, Ronald Reagan refused to execute the Independent Counsel law on the 

grounds of separation of powers—an ironic position given his own refusal to respect 

a duly enacted law of Congress. The Supreme Court ruled 7–1 that Reagan was 

wrong in Morrison v. Olson.43 In the same fashion, George H. W. Bush opposed affirmative action policies of the FCC only to be rejected in Metro Broadcasting v. 

FCC.44 While this was in turn overruled in Adarand Constructors, Inc. v. Pen ̃a,45

it was clearly a close constitutional question. For presidents to block enforcement 

of a law creates uncertainty as to the legitimacy and finality of enactments. 

I cannot agree with Abner Mikva who claimed as White House Counsel for Clinton that it is ‘‘uncontroversial’’ that ‘‘the President may appropriately decline to enforce a statute that he views as unconstitutional.’’ 46 Mikva cites virtually nothing 

in terms of the text or intent of the Framers. Rather, he cites first and foremost 

the silence of the Court in cases like Myers where ‘‘the Court sustained the President’s view that the statute at issue was unconstitutional without any member of 

the Court suggesting that the President had acted improperly in refusing to abide 

by the statute.’’ 47 This ‘‘implicit[] vindication’’ is cited by Mikva as proof of the authority to block the enforcement of federal statutes.48

There has of course been obvious controversy over the right of a president to 

refuse to execute federal laws in light of express language requiring his faithful enforcement of such laws. Moreover, the allowance for nonenforcement orders undermines the express process of legislation detailed in Article I and Article II. Thus, 

a president like Clinton can sign the National Defense Authorization Act for Fiscal 

Year 1996, forego a constitutional veto, and then declare a constructive post-enactment veto in a signing statement. While I happened to agree with Clinton on his 

opposition of the mandatory discharge of HIV-positive service members, a conscious 

decision was made to sign the legislation under the expectation that he could 

achieve the same effect of a veto through a nonenforcement order. Of course, it did 

not have the same effect constitutionally. An actual veto would have resulted in additional congressional debate and a separate vote to override the veto. The nonenforcement order made the legislative process meaningless by negating the provisions in a post-enactment order. 

III. NONENFORCEMENT POLICIES UNDER THE OBAMA ADMINISTRATION

From Internet gambling to educational waivers to immigration deportations to 

health care decisions, the Obama Administration has been unilaterally ordering 

major changes in federal law with the notable exclusion of Congress. Many of these 

changes have been defended as discretionary acts or mere interpretations of existing 

law. However, they fit an undeniable pattern of circumventing Congress in the creation of new major standards, exceptions, or outright nullifications. What is most 

striking about these areas is that they are precisely the type of controversial questions designed for the open and deliberative legislative process. The unilateral imposition of new rules robs the system of its stabilizing characteristics in dealing with 

factional divisions. While Attorney General Eric Holder has recognized that the judicial branch is ‘‘the final arbiter of . . . constitutional claims,’’ 49 he appears less committed to the concept of the legislative branch’s inherent authority. The classic cir-
23 

50Devins & Prakash, supra, 112 Colum. L. Rev. at 526. 51Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). 52 Id. at 529. 53 Id. (‘‘In sum, to imagine that the Constitution marks the Supreme Court as supreme in its 

exposition of the Constitution and laws of the United States, one has to believe two implausible 

propositions. One has to presume that a Constitution that never grants the Supreme Court a 

general power to decide all legal questions nonetheless cedes the Court a power to definitively 

answer such questions in some instances. And one has to discover, buried deep within the Constitution’s interstices, an interbranch supremacy on constitutional and legal interpretation even 

though the Constitution contains nary a word hinting at such dominance.’’) 54Motoko Rich, ‘‘No Child’’ Law Whittled Down By The White House, New York Times, July 

6, 2012. 55 Nathan Vardi, Department of Justice Flip-Flops On Internet Gambling, Forbes, Dec. 12, 

2011. 56This date applies to the Employer Mandate (26 U.S.C. § 4980H) and the 

Individual Mandate (id. § 5000A). Pub. L. No. 111–148, 124 Stat. 119. 

cumvention of the Faithful Executive Clause is to say that it necessarily is limited 

to only constitutional laws. However, this argument only begs the question of who 

determines the unconstitutionality of a law. If it is left to a President, any such law 

could be claimed as presumptively unconstitutional. Indeed, if a President views a 

law as unconstitutional, it is not clear why the President could not still refuse to 

enforce it. This inherent power is often reinforced by reference to the President’s 

oath to ‘‘preserve, protect, and defend’’ the Constitution—making the enforcement 

of a law deemed unconstitutional a violation of his oath—the Jeffersonian position 

on the Sedition Act. 

Some academics posit that each branch has an interpretive function and that the 

President need not yield to the rivaling interpretation of Congress or even courts. 

As was recently argued in one law review, ‘‘the Constitution nowhere anoints any 

entity or branch as the final arbiter of the meaning of the laws or the Constitution.’’ 50 This view, however, challenges the stability achieved after Marbury v. 

Madison 51 since it necessarily leads to a position that ‘‘[t]he Constitution never 

marks the Supreme Court supreme in its exposition of the Constitution over Presidents, Congress, the states, or the people.’’ 52 This is a long-standing debate that is 

not without support given the absence of a clear statement in Article III making 

the Supreme Court the final arbiter in such disputes.53 However, regardless of the 

debate over Chief Justice Marshall’s basis for his holding, Marbur established a key 

stabilizing element by bringing finality to interpretive debates, particularly over 

controversies over the separation of powers. While the Administration avoids acknowledging the implications of its policy, it does inevitably challenge this 

foundational principle of judicial authority. The result is a view that not only allows 

the circumvention of the legislative powers but the negation of judicial review. That 

leaves such disputes to a matter of political strength and reduces the tripartite system to something akin to a continual game of chicken between branches. 

While political divisions would normally be a reason to leave a matter to the legislative process to resolve, it is increasingly being cited as a rationale for circumventing Congress. Thus, citing gridlock and the failure to correct the law, President 

Obama has granted widespread waivers to states under the No Child Left Behind 

Act, effectively nullifying the law in the view of critics.54 This has been denounced 

as a circumvention of Congress with the creation of new criteria or conditions by 

the Administration for schools to receive the waivers. This new system is entirely 

the product of an intrabranch process in circumvention of Congress. Likewise, the 

Administration effectively flipped the interpretation of the Wire Act, 18 U.S.C. 

§ 1084, from years of prohibiting Internet gambling to a limited bar just on sports 

betting.55 The interpretation effectively flipped the long-standing meaning of the 

federal law—an interpretation favored by many states and lobbyists in the industry. 

After years of maintaining a consistent interpretation, the 180 degree change transformed the Act into a vastly different law that potentially allowed billions of dollars’ 

worth of gambling operations on the Internet. While defendable as an interpretative 

function, it was a radical change made without congressional hearings or debate. 

A different rationale was used for delaying enforcement of the employer mandate 

set by Congress in the Affordable Care Act. Once again, this remains one of the 

most important and divisive questions facing the political system. Yet, the Administration cited deference to agencies in implementing regulations and establishing 

standards for tax and other provisions. Despite having four years to implement the 

law and the statutorily-set deadline, the Administration insisted that Congress cannot hold agencies to such schedules. The law itself unambiguously sets January 1, 

2014 as the critical date 56—a matter of considerable debate within Congress during 
24 

57Mark J. Mazur, Continuing to Implement the ACA in a Careful, Thoughtful Manner, U.S. 

Department of the Treasury, July 2, 2013 (available at http://www.treasury.gov/connect/blog/ 

Pages/Continuing-to-Implement-the-ACA-in-a-Careful-Thoughtful-Manner-.aspx). 58There was also an immigration component of the controversy over DOMA. Peter Baker, For 

Obama, Tricky Balancing Act in Enforcing Defense of Marriage Act, New York Times (Mar. 28, 

2013). Before the ruling of the Supreme Court striking down DOMA, the Department of Homeland Security announced that it would no longer enforce DOMA in its immigration decision. In 

August 2011, Obama’s DHS announced it would no longer deport the noncitizen spouses of gay 

Americans in conflict with DOMA. 59The Attorney General’s Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55 (1980) (opinion of Attorney General Civiletti. 60Memorandum of Janet Napolitano, Secretary of Homeland Security, June 15, 2012, (available at http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-whocame-to-us-as-children.pdf). 

deliberations. There is no express power given to change that date. Yet, Mark J. 

Mazur, the Assistant Secretary for Tax Policy at the U.S. Department of the Treasury, insisted that such mandatory dates can be ignored by the Administration, 

which will unilaterally decide such questions.57 It is another example of the new 

independence of the ‘‘Fourth Branch’’ and how specific mandates can now be disregarded in the haze of agency deference. The Congress could not have been more 

clear as to the activation date for the law, but the position of the Administration 

would make such provisions merely advisory and subject to the agreement of the 

President. 

The Administration’s basis for negating statutory provisions lost even the pretense of reasoned authority in the immigration area.58 There has long been a general consensus that a president cannot refuse to enforce a law that is considered 

constitutionally sound. Thus, in his general support for nonenforcement orders, 

former Attorney General Benjamin Civiletti acknowledged that ‘‘[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.’’ 59 Yet, in June 2012, President Obama appeared to exercise precisely this 

type of ‘‘dispensing power’’ in issuing an order to federal agencies that the Administration would no longer deport individuals who came to this country illegally as children despite the fact that federal law mandates such deportation. In disregarding 

the statutory language, the Administration rolled out a new alternative policy that 

individuals can qualify for ‘‘deferred action’’ if they had come to the country before 

the age of 16, have no criminal history, resided in the U.S. for at least five consecutive years, and are either a student or have already graduated from high school, 

or earned an equivalent GED, or served in the military. Yet, this new, detailed system is the product not of Congress but the internal deliberations of a federal agency. 

While claimed to simply be an act of prosecutorial discretion,60 it constitutes a new 

and alternative immigration process for these individuals. 

The Administration again circumvented Congress in August of this year with the 

announcement that deportation would no longer occur for any primary provider for 

any minor child or the parent or guardian of a child who is a U.S. citizen or legal 

permanent resident. Once again, it is not clear what Congress could do to counter 

such claims of discretion any more than it could set the date for the implementation 

of the ACA. The federal law mandates deportation for individuals in the country illegally. While prosecutorial discretion has been cited in individual case decisions, 

the Administration was using it to nullify the application of federal law to hundreds 

of thousands, if not millions of individuals. Once again, one’s personal view of the 

merits of such an exception should not be the focus, or even a part, of the analysis. 

In ordering this blanket exception, President Obama was nullifying part of a law 

that he simply disagreed with. There is no claim of unconstitutionality. It is a raw 

example of the use of a ‘‘dispensing power’’ over federal law. It is difficult to discern 

any definition of the faithful execution of the laws that would include the blanket 

suspension or nullification of key provisions. What the immigration order reflects is 

a policy disagreement with Congress. However, the time and place for such disagreements is found in the legislative process before enactment. If a president can 

claim sweeping discretion to suspend key federal laws, the entire legislative process 

becomes little more than a pretense. What is most striking is the willingness of 

some to accept this transparent effort to rewrite the immigration law after the failure to pass the DREAM Act containing some of the same reforms. 

A few weeks ago, President Obama again invoked his inherent power in declaring 

that individuals with pre-existing policies could retain those policies for a year de-
25 

61 Juliet Eilperin, Amy Goldstein and Lena H. Sun, Obama Announces Change To Address 

Health Insurance Cancellations, Wash. Post, Nov. 14, 2013. 62 26 U.S.C. § 5000A. 63 26 U.S.C. § 5000A(b). 

spite the fact that they do not conform with the requirements of the ACA.61 The 

ACA expressly sets the date for compliance that penalizes non-exempt individuals 

who do not maintain ‘‘minimum essential’’ health insurance coverage.62 Those noncompliant individuals are subject to a ‘‘[s]hared responsibility payment.’’ 63 By saying that states can allow individuals to remain non-compliant after the statutory 

deadline, President Obama inserted a constructive exemption that would have been 

the subject of intense political debate at the time of the deliberations. 

Notably, the unilateral change occurred when legislation addressing this issue 

was being debated in Congress. Moreover, this change was made after an outcry 

over what many viewed as the central selling point of the President’s during the 

debate over the ACA: suggesting that, if people liked their current policies, they 

would be allowed to keep them. After securing passage of the ACA, however, on a 

thin vote margin, many accused the President of a bait-and-switch when millions 

lost their policies. I will leave others to work through the merits of that controversy. 

For my purposes, I am only interested in the fact that a key issue discussed during 

the debate over the legislation was unilaterally altered after passage. This is an obviously important part of the debate. The law does not expressly give the President 

the authority to waive the application of the provisions for selected groups. To the 

extent that the President was claiming that he had the authority to amend the law 

in this way, I fail again to see the legal basis for such authority. 

Notably, the unilateral changes made to laws like the ACA are not done (as with 

Jefferson’s refusal to enforce the Sedition Act) in defiance of an act viewed as unconstitutional and abusive. Rather, President Obama has invoked a far broader authority to tailor laws based on his judgment and discretion. This may be done ostensibly 

to ‘‘improve’’ the law as with the one-year waiver for individual policies or to mitigate the hardship of a law as with the immigration law. These happen to be areas 

of great political division in the country as well as substantial opposition to the 

President’s policies in Congress. Many applauded the President’s transcending politics by ordering such unilateral action without considering the implications of such 

inherent authority for the system as a whole. 

Once again, it is important to divorce the subject of such legislation or the identity of the president from the constitutional analysis. The circumvention of the legislative process not only undermines the authority of this branch but destabilizes the 

tripartite system as a whole. If President Obama can achieve the same result of legislation by executive fiat, future presidents could do the same in negating environmental or discrimination or consumer protection laws. Such practices further invest 

the Administrative State with a degree of insularity and independence that poses 

an obvious danger to liberty interests protected by divided government. This danger 

is made all the more menacing by the clear assumption by the Executive Branch 

that artificially narrow standing rules will insulate the orders from judicial scrutiny 

and relief. With Congress so marginalized and courts so passive, the Fourth Branch 

threatens to become a government unto itself for all practical purposes. 

IV. CONCLUSION

In Federalist No. 51, James Madison explained the essence of the separation of 

powers—and the expected defense of each branch of its constitutional prerogatives 

and privileges: 

‘‘But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each 

department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as 

in all other cases, be made commensurate to the danger of attack. Ambition 

must be made to counteract ambition.’’ 

A provision was once made for the defense of this branch against the type of ‘‘encroachments’’ discussed in this hearing. It was found in the power of Congress to 

establish federal law and the obligation of the Executive Branch to faithfully execute those laws. For decades, however, Congress has allowed its core authority to 

drain into a fourth branch of federal agencies with increasing insularity and independence. It has left Congress intact but inconsequential in some disputes. If this 

trend continues unabated, Congress will be left like some Maginot Line on the constitutional landscape—a sad relic of a once tripartite system of equal branches. 
26 

64See generally Turley, Age of Regulation, supra. 

There remain legitimate questions over when a President can refuse to defend or 

enforce a statute and whether the former duty is a subset of the latter duty. As an 

academic deeply concerned over the concentration of power under the modern presidency, I tend to minimize such authority in favor of a more formalist division of 

powers.64 Functionalists take a clearly more fluid approach to such powers. However, I do not view the recent controversies as ‘‘close questions.’’ The actions of the 

Obama Administration challenge core principles of the separation of powers and 

lack meaningful limiting principles for future executive orders. 

Clearly, these are times of bitter and intractable divisions between the parties. 

It is not the first time such divisions have emerged in Congress. However, Madison 

and others believed that petty partisanship would ultimately yield to common institutional interests when faced with the ‘‘danger of attack.’’ After all, members have 

a common article of faith. It is Article I of the Constitution and the words ‘‘All legislative powers herein granted shall be vested in a Congress of the United States.’’ 

Mr. GOODLATTE. Mr. Rosenkranz, welcome. 

TESTIMONY OF NICHOLAS QUINN ROSENKRANZ, PROFESSOR 

OF LAW, GEORGETOWN UNIVERSITY LAW CENTER AND SENIOR FELLOW IN CONSTITUTIONAL STUDIES, CATO INSTITUTE 

Mr. ROSENKRANZ. Thank you, Mr. Chairman, Representative 

Conyers, Members of the Committee. I thank you for the opportunity to express my views about the President’s constitutional 

duty to take care that the laws be faithfully executed. 

So to speak about the Take Care Clause, I want to associate myself with Professor Turley’s opening statements. I quite agree with 

all of his remarks. 

I would like to just draw the Committee’s attention to the text 

of the clause. It is always best to begin by parsing the actual 

words. 

So, first, notice that this clause is not a grant of power actually 

but the imposition of a duty. ‘‘The President shall take Care.’’ This 

is not optional. It is mandatory. 

Second, note that the duty is personal. The execution of the laws 

may be delegated to other officers, but the duty to take care that 

the laws be faithfully executed—that is personal. That is the President’s duty alone. 

Third, notice that the President is not required to take care that 

the laws be completely executed. That would be impossible given 

finite resources. The President does have power to make enforcement choices. However, he must make them faithfully. 

Finally, it is important to remember the historical context of the 

clause. English kings had claimed the power to suspend laws unilaterally, but the Framers expressly rejected that practice. Here, 

the executive would be obliged to take care that the laws be faithfully executed. 

So with these principles in mind, it is possible to view some recent controversies through this precise proper constitutional lens. 

For this purpose, I am going to focus on three examples: the President’s unilateral decision to suspend certain provisions of the Affordable Care Act; the President’s unilateral abridgement of the 

Immigration and Nationality Act; and on the IRS’s targeting of the 

President’s political adversaries. 
27 

So, first, the Obamacare suspension. On July 2nd, 2013, just before the long weekend, the Obama administration announced via 

blog post that the President would unilaterally suspend the employer mandate of Obamacare, notwithstanding the unambiguous 

command of the law. The statute is perfectly clear. It provides that 

these provisions become effective on January 1st, 2014. The blog 

post makes no mention of the statutory deadline. 

This raises the question of what it means to take care that the 

laws be faithfully executed. Certainly the adverb ‘‘faithfully’’ gives 

the President broad discretion about how to best deploy his executive resources, and the scope of that discretion can be the subject 

of legitimate debate. But this was not a mere calibration of executive resources. This is wholesale suspension of law in the teeth of 

a clear statutory command to the contrary. Whatever it may mean 

to take care that the laws be faithfully executed, it simply cannot 

mean declining to execute a law at all. 

Now, the President’s remarks on this issue were quite striking. 

A few months ago, he said he would actually prefer to simply call 

up the Speaker of the House to request a change in this law that 

would have achieved the desired delay, but the truth is he would 

not have needed to pick up the phone. The House actually had already passed the Authority for Mandate Delay Act, but the President, far from welcoming this legislative change, actually threatened to veto it. So this seems almost like a willful violation of the 

Take Care Clause. 

The second example, the Immigration and Nationality Act suspension, which the Chairman mentioned. I will just mention briefly 

what is striking about this is the President’s decision to enforce the 

immigration laws as though the DREAM Act had been enacted 

when in fact it has not. So in this case, it is almost a mirror of the 

other case. Rather than declining to comply with a duly enacted 

statute, the President is complying meticulously but with a bill 

that never became a law. Congress has repeatedly considered a 

statute called the DREAM Act. The President favors this act. Congress repeatedly declined to pass it. So the President has simply 

announced that he would enforce the Immigration and Nationality 

Act as though the DREAM Act had been enacted. 

To put the point another way, the President’s duty is to ‘‘take 

Care that the Laws be faithfully executed,’’ ‘‘Laws,’’ capital L, not 

those bills which fail to become law like the DREAM Act. 

Finally, I will just briefly mention the IRS targeting. If the adverb ‘‘faithfully’’ means anything, I would say that it means 

nondiscriminatorily. That is, the President cannot enforce the laws 

in a discriminatory manner. And the story of the IRS targeting is 

actually the application of the tax laws to the President’s political 

enemies in a discriminatory way. This is perhaps the single most 

troubling type of enforcement discrimination, and so in a way perhaps the most troubling violation of the President’s obligation to 

take care that the laws be faithfully executed. 

Thank you. 

[The prepared statement of Mr. Rosenkranz follows:] 
28 

1 U.S. CONST. art. II, § 3. 2 Id. (emphasis added). 3 Id. (emphasis added). 4 Id. (emphasis added). 

5F.W. MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND: A COURSE OF LECTURES DELIV- ERED, 302–03 (1st ed. 1908 & reprint 1919). 6 U.S. CONST. art. II, § 3. See also Michael W. McConnell, Op-Ed: Obama Suspends the Law, 

WALL ST. J. (July 8, 2013), http://online.wsj.com/article/SB1000142412788732382300457859150 

3509555268.html. 7Mark J. Mazur, Continuing to Implement the ACA in a Careful, Thoughtful Manner, U.S. 

DEP’T OF THE TREASURY (July 2, 2013), http://www.treasury.gov/connect/blog/Pages/Continuingto-Implement-the-ACA-in-a-Careful-Thoughtful-Manner-.aspx. The Obama Administration suspended implementation of 26 U.S.C. § 6055, 26 U.S.C. § 6056, and 26 U.S.C. § 4980H. 8The Patient Protection and Affordable Care Act, Pub.L. 111–148, § 1502(e), 124 Stat. 119, 

252 (March 23, 2010) (‘‘The amendments made by this section shall apply to calendar years beginning after 2013.’’); id. § 1513(d), 124 Stat. at 256 (‘‘The amendments made by this section 

shall apply to months beginning after December 31, 2013.’’). 9See Mazur, supra note 7. 

Prepared Statement of Nicholas Quinn Rosenkranz, Professor of Law, 

Georgetown University Law Center, and Senior Fellow in Constitutional 

Studies, The Cato Institute, Washington, DC 

Mr. Chairman, Representative Conyers, Members of the Committee: I thank you 

for the opportunity to express my views about the President’s constitutional duty 

to ‘‘take Care that the Laws be faithfully executed.’’ 1

This is a timely and important hearing, because many of the legal controversies 

of the day implicate this Presidential duty. In areas as important and diverse as 

healthcare, immigration, nuclear waste storage, tax enforcement, military action, 

and foreign aid, there has been an inchoate sense that the Administration has overstepped its authority. But the criticism has generally been issue-specific, and it has 

often conflated policy objections with constitutional objections. There has been very 

little systematic analysis of this behavior as a pattern. And more to the point, there 

has been very little analysis of the particular constitutional clause at issue. 

The relevant clause of the Constitution, which should be the lodestar of this discussion, is the Take Care Clause: ‘‘The President . . . shall take Care that the Laws 

be faithfully executed.’’ 2 To put these recent controversies in constitutional context, 

it is essential to understand the meaning and purpose of this Clause. As always, 

it is best to begin by parsing the constitutional text. 

First, notice that this Clause does not grant power but rather imposes a duty: 

‘‘The President . . . shall take Care . . . ’’ 3 This is not optional; it is mandatory. 

Second, note that the duty is personal. Execution of the laws may be delegated, but 

the duty to ‘‘take Care that the Laws be faithfully executed’’ 4 is the President’s 

alone. Third, notice that the President is not required to take care that the laws 

be ‘‘completely’’ executed; that would be impossible given finite resources. The President does have power to make enforcement choices—however, he must make them 

‘‘faithfully.’’ Finally, it is important to remember the historical context of the clause: 

English kings had claimed the power to suspend laws unilaterally,5 but the Framers 

expressly rejected that practice. Here, the executive would be obliged to ‘‘take Care 

that the Laws be faithfully executed.’’ 6

With these principles in mind, it is possible to view recent controversies through 

the proper constitutional lens. For this purpose, I shall focus on three recent examples—though, sadly, there are many others that one could choose. I shall focus on 

the President’s unilateral decision to suspend certain provisions of the Affordable 

Care Act, on the President’s unilateral abridgement of the Immigration and Nationality Act, and on the IRS’s targeting of the President’s political adversaries. 

I. OBAMACARE SUSPENSION

On July 2, 2013, just before the long weekend, the Obama Administration announced via blog post that the President would unilaterally suspend the employer 

mandate of ObamaCare 7—notwithstanding the unambiguous command of the law. 

The statute is perfectly clear: It provides that these provisions become effective on 

January 1, 2014.8 The blog post—written under the breezy Orwellian title ‘‘Continuing to Implement the ACA in a Careful, Thoughtful Manner’’—makes no mention of the statutory deadline.9

This blog post raises the question of what it means to ‘‘take Care that the Laws 

be faithfully executed.’’ Certainly, the adverb ‘‘faithfully’’ gives the President broad 

discretion about how best to deploy executive resources and how best to execute the 

laws. And the precise scope of this discretion may be the subject of legitimate debate. But this breathtaking blog post was not a mere exercise of prosecutorial dis-
29 

10President Barack Obama, Remarks by the President in a Press Conference, (Aug. 9, 2013), 

http://www.whitehouse.gov/the-press-office/2013/08/09/remarks-president-press-conference. 11See Jackie Calmes & Michael D. Shear, Interview with President Obama, N.Y. TIMES (July 

27, 2013), http://www.nytimes.com/2013/07/28/us/politics/interview-with-president-obama.html 

?pagewanted=all&lr=0. 12 Id. 13 Jonathan Weisman & Robert Pear, Seeing Opening, House G.O.P. Pushes Delay on Individual Mandate in Health Law, N.Y. TIMES (July 9, 2013), http://www.nytimes.com/2013/07/10/ 

us/politics/house-gop-pushes-delay-on-individual-mandate-in-health-law.html. 14President Barack Obama, Remarks by the President in a Press Conference, (Aug. 9, 2013), 

http://www.whitehouse.gov/the-press-office/2013/08/09/remarks-president-press-conference. 15See Authority for Mandate Delay Act, H.R. 2667, 113th Cong. (2013). For final vote results 

for H.R. 2667, see http://clerk.house.gov/evs/2013/roll361.xml. 16See Authority for Mandate Delay Act, H.R. 2667, 113th Cong. (2013). 17OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, STATEMENT OF ADMINISTRA- TION POLICY, (July 16, 2013), http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/ 

113/saphr2668rl20130716.pdf. 18 Id. 19See Elisha Barron, The Development, Relief, and Education for Alien Minors (Dream) Act, 

48 HARV. J. ON LEGIS. 623, 633 (2011); Robert J. Delahunty & John C. Yoo, Dream On: The 

Obama Administration’s Nonenforcement of Immigration Laws, the Dream Act, and the Take 

Care Clause, 91 TEX. L. REV. 781, 783–784, 789 (2013). 20The Dream Act of 2011 did not move past the committee stage in either the House or the 

Senate. See Development, Relief, and Education for Alien Minors Act of 2011, H.R. 1842, 112th 

Congress (2011); Development, Relief, and Education for Alien Minors Act of 2011, S. 952, 112th 

Congress (2011). 

cretion or a necessary calibration of executive resources. This was a wholesale suspension of law, in the teeth of a clear statutory command to the contrary. Whatever 

it may mean to ‘‘Take Care that the Laws be faithfully executed,’’ it simply cannot 

mean declining to execute a law at all. 

As if the suspension weren’t enough, President Obama’s comments about it on August 9, 2013—claiming that ‘‘the normal thing [he] would prefer to do’’ is seek a 

‘‘change to the law’’ 10—added insult to constitutional injury. Indeed, the President 

seemed annoyed when The New York Times dared to ask him the constitutional 

question.11 As for Republican congressmen who questioned his authority, Mr. 

Obama said only: ‘‘I’m not concerned about their opinions—very few of them, by the 

way, are lawyers, much less constitutional lawyers.’’ 12 Mr. Obama made no mention 

of, for example, Iowa Sen. Tom Harkin—a Democrat, a lawyer and one of the authors of ObamaCare—who asked exactly the right question: ‘‘This was the law. How 

can they change the law?’’ 13 Senator Harkin’s point, of course, is that a change like 

this is inherently legislative; it requires an amendment to the statute itself. 

But the President has been distinctly ambivalent about any such amendment. A 

few months ago, he said that he would like to ‘‘simply call up the Speaker’’ of the 

House to request a ‘‘change to the law’’ that would achieve his desired delay.14 But 

the truth, as the President knows, is that he wouldn’t even need to pick up the 

phone: On July 17, 2013, the House of Representatives passed the Authority for 

Mandate Delay Act (with 229 Republicans and 35 Democrats voting in favor).15 This 

would have authorized President Obama’s desired suspension of the law.16

But President Obama did not actually welcome this congressional ratification. To 

the contrary, this bill—which stood to fix the constitutional problem that he himself 

had created—the President deemed ‘‘unnecessary’’.17 Indeed, he actually threatened 

to veto it.18 In this case, it appeared that the President would actually prefer to 

flout the law as written, rather than support a statutory change that would achieve 

his desired result. This seems an almost willful violation of the Take Care Clause. 

II. IMMIGRATION AND NATIONALITY ACT SUSPENSION

The second example, immigration, is almost an exact mirror of the first. In the 

ObamaCare context, the President suspended an Act of Congress—a statute that 

was duly passed by both Houses of Congress, and which he himself had signed into 

law. In the immigration context, the situation is the opposite. Rather than declining 

to comply with a duly enacted statute, the President is complying meticulously— 

with a bill that never became a law. 

Congress has repeatedly considered a statute called the DREAM Act, which would 

exempt a broad category of aliens from the Immigration and Nationality Act 

(INA).19 The President favored this Act, but Congress repeatedly declined to pass 

it.20 So, on June 15, 2012, the President announced that he would simply not en-
30 

21President Barack Obama, Remarks by the President on Immigration (June 15, 2012), http:// 

www.whitehouse.gov/the-press-office/2012/06/15/remarks-president-immigration. 22See id.; Memorandum from Janet Napolitano, Sec’y, U.S. Dep’t of Homeland Sec., to David 

V. Aguilar, Acting Comm’r, U.S. Customs & Border Prot., Alejandro Mayorkas, Dir., U.S. Citizenship & Immigration Servs. & John Morton, Dir., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, U.S. IMMIGRATION & CUSTOMS

ENFORCEMENT (June 15, 2012), http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorialdiscretion-individuals-who-came-to-us-as-children.pdf. 23See Brief for Respondent United States at 26, Arizona v. United States, 132 S. Ct. 2492 

(2012) (No. 11–182). The Solicitor General argued that ‘‘Arizona’s attempt to punish violations 

of federal law intrudes on exclusive federal authority.’’ 24 JEANNE BATALOVA & MICHELLE MITTELSTADT, MIGRATION POLICY INST., RELIEF FROM

DEPORTATION: DEMOGRAPHIC PROFILE OF THE DREAMERS POTENTIALLY ELIGIBLE UNDER THE

DEFERRED ACTION POLICY 1 (2012), available at http://www.migrationpolicy.org/pubs/ 

FS24ldeferredaction.pdf. 25See Memorandum from Janet Napolitano, supra note 22. See also In re Aiken Cnty., 725 

F.3d 255 (D.C. Cir. 2013) (Kavanaugh, J.) (‘‘[T]he 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.’’). 26 U.S. CONST. art. I, § 7 (requiring bicameralism and presentment for a bill to become a law). 27President Barack Obama, Remarks by the President at Univision Town Hall (Mar. 28, 

2011), http://www.whitehouse.gov/the-press-office/2011/03/28/remarks-president-univision-townhall. 28President Barack Obama, Remarks by the President on Immigration Reform—San Francisco, CA (Nov. 25, 2013), http://www.whitehouse.gov/the-press-office/2013/11/25/remarks-president-immigration-reform-san-francisco-ca. 29 Id. 

force the INA against the precise category of aliens described in the DREAM Act.21

He announced, in effect, that he would behave as though the DREAM Act had been 

enacted into law, though it had not.22

Once again, the President does have broad prosecutorial discretion and broad discretion to husband executive resources. But in this case, it is quite clear that the 

President is not merely trying to conserve resources. After all, his Solicitor General 

recently went to the Supreme Court to forbid Arizona from helping to enforce the 

INA.23 And exempting as many as 1.76 million people from the immigration laws 

goes far beyond any traditional conception of prosecutorial discretion.24 More to the 

point, this exemption has a distinctly legislative character. It is not a decision, in 

a particular case, that enforcement is not worth the resources; rather it is a blanket 

policy which exactly mirrors a statute that Congress declined to pass.25 To put the 

point another way, the President shall ‘‘take Care that the Laws’’—capital ‘‘L’’—‘‘be 

faithfully executed’’—not those bills which fail to become law. Here, in effect, the 

President is faithfully executing the DREAM Act, which is not law at all, rather 

than the Immigration and Nationality Act, which is supreme law of the land. The 

President cannot enact the DREAM Act unilaterally, and he cannot evade Article 

I, section 7,26 by pretending that it passed when it did not. 

Indeed, the President himself made this exact point, eloquently, only 20 months 

ago: 

America is a nation of laws, which means I, as the President, am obligated 

to enforce the law. . . . 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 that Congress has passed . . . 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.27

And just last week, in response to a heckler, the President expressly denied that 

he has ‘‘a power to stop deportation for all undocumented immigrants in this country.’’ 28 He reiterated: 

[W]e’re also a nation of laws. That’s part of our tradition. And so the easy 

way out is to try to yell and pretend like I can do something by violating 

our laws. And what I’m proposing is the harder path, which is to use our 

democratic processes to achieve the same goal that you want to achieve.29

What the President did not explain is how his current immigration policy is consistent with that principle. 
31 

30Written Testimony of Carter Hull, Before the House Oversight and Gov’t Reform Comm. 

(July 18, 2013), http://oversight.house.gov/wp-content/uploads/2013/07/Hull-Testimony-Final.pdf. 31See 26 U.S.C. § 7803(b)(1). 32Press Release, The White House: Office of the Press Sec’y, President Obama Announces 

More Key Treasury Appointments (Apr. 17, 2009), http://www.whitehouse.gov/the-press-office/ 

president-obama-announces-more-key-treasury-appointments. 33Press Release, U.S. Dep’t of the Treasury, William J. Wilkins Confirmed as Chief Counsel 

for the Internal Revenue Service, Assistant General Counsel for Treasury (July 28, 2009), http:// 

www.treasury.gov/press-center/press-releases/Pages/tg245.aspx. 34See President Barack Obama, Remarks by President Obama and Prime Minister Cameron 

of the United Kingdom in Joint Press Conference, (May 13, 2013), http://www.whitehouse.gov/ 

the-press-office/2013/05/13/remarks-president-obama-and-prime-minister-cameron-united-kingdom-joint-. The IRS is part of the Department of Treasury, not an independent agency. See 26 

USC § 7803 (placing the IRS Commissioner in the Department of the Treasury, and making him 

removable at the will of the President). 35See Smith v. Meese, 821 F.2d 1484, 1492 (11th Cir. 1987). 36See John Hart Ely, Gerrymanders: The Good, the Bad, and the Ugly, 50 STAN. L. REV. 607, 

621 (1998). 37TREASURY INSPECTOR GEN. FOR TAX ADMIN., INAPPROPRIATE CRITERIA WERE USED TO IDENTIFY TAX-EXEMPT APPLICATIONS FOR REVIEW 5 (May 14, 2013), https://docs.google.com/viewer?url=http://www.washingtonpost.com/blogs/wonkblog/files/2013/05/201310053fr-revised-redacted-1.pdf&chrome=true. 

III. IRS TARGETING

The third example is troubling in a different way. As is now well known, the IRS 

subjected Tea Party organizations to Kafkaesque scrutiny and delay, particularly in 

the run-up to the last election. A few months ago, a House Oversight Committee 

hearing revealed that the IRS Chief Counsel’s Office had played a key role.30 The 

Committee rightly zeroed in on this fact, because the Chief Counsel is one of only 

two political appointees at the IRS,31 appointed by President Obama 32 and confirmed by the Senate.33 But what was missing from the hearing—and what has 

been missing from the commentary throughout—is the constitutional context of this 

scandal. 

The President has, of course, been at pains to distance himself from this scandal. 

But, again, recall that the duty to ‘‘take Care’’ is personal. Execution of the laws 

may be delegated; indeed, the Clause clearly contemplates that other officers—like 

the IRS Chief Counsel—will do the actual executing. But the duty to ‘‘take Care that 

the Laws be faithfully executed’’ is the President’s alone. For this reason, what the 

President knew and when he knew it is, in a certain sense, beside the point; the 

right question is what he should have known. It will not do for the President to 

say (erroneously) that the IRS is an ‘‘independent agency’’ or to say (implausibly) 

that he learned about IRS targeting ‘‘from the same news reports’’ as the rest of 

us.34 Not knowing what an executive agency is up to—let alone not knowing that 

the IRS is, in fact, a bureau of an executive agency that answers to the President— 

is not taking care that the laws be faithfully executed. If the President was negligent in his supervision of the IRS (or somehow unaware that it was subject to his 

supervision), then he failed in his duty to take care. 

Now, again, it is true that the President is not required to take care that the laws 

be ‘‘completely’’ executed; that would be impossible given finite resources. The President does have power to make enforcement choices—however, he must make them 

‘‘faithfully.’’ If the President lacks the resources to prosecute all bank robbers, he 

may choose to prosecute only the violent bank robbers; but he cannot choose to prosecute only the Catholic bank robbers.35 Invidious discrimination is not faithful execution. 

Discriminatory enforcement on the basis of religion would have horrified the 

Framers of the Constitution. But there is one kind of discrimination that would 

have worried them even more—the one kind that could undermine the entire constitutional structure: political discrimination. The single most corrosive thing that 

can happen in a democracy is for incumbents to use the levers of power to stifle their 

critics and entrench themselves.36 This is devastating to a democracy, because it 

casts doubt on the legitimacy of all that follows. Ensuring that this does not happen 

is perhaps the single most important imperative of the President’s duty to take care 

that the laws be faithfully executed. If he gives only one instruction to his political 

appointees, it should be this: do not discriminate on the basis of politics in your execution of the laws. 

This, sadly, is the gravamen of the IRS scandal. Congress enacted a neutral provision of the tax code, but an executive agency enforced it non-neutrally, discriminating on invidious grounds. It discriminated against the Tea Party,37 the most potent political force that the President’s party faced in the mid-term elections. It dis-
32 

38 Id. at 6, 35. 39 Id. at 30, 38. 40See id. at 6–10. 41 Eddie Sotelo, Interview with the President of the United States Barack Obama, UNIVISION

RADIO (Oct. 25, 2010), transcript available at http://latimesblogs.latimes.com/washington/2010/ 

10/transcript-of-president-barack-obama-with-univision.html. 42President Barack Obama, Remarks by the President in State of the Union Address (Jan. 

27, 2010), http://www.whitehouse.gov/the-press-office/remarks-president-state-union-address. 43President Barack Obama, Remarks by the President and the Vice President at a DNC ‘Moving America Forward’ Rally in Philadelphia, Pennsylvania (Oct. 10, 2010), http:// 

www.whitehouse.gov/the-press-office/2010/10/10/remarks-president-and-vice-president-a-dncmoving-america-forward-rally-. 44 U.S. CONST. art. II, § 3. 

criminated against those who ‘‘criticize how the country is being run.’’ 38 For good 

measure, it reportedly discriminated against those ‘‘involved in . . . educating on 

the Constitution and the Bill of Rights.’’ 39 And it did all this while an embattled 

incumbent President was running for re-election.40

The President may, alas, urge his supporters to ‘‘punish our enemies’’ 41; but he 

cannot stand oblivious while the IRS does just that. He may, alas, berate the Supreme Court for protecting political speech 42; but he cannot turn a blind eye while 

the IRS muzzles his critics with red tape. He may, alas, call right-leaning groups 

a ‘‘threat to our democracy’’ 43—but the real, cardinal threat is unfaithful execution 

of the laws. 

CONCLUSION

The President has a personal obligation to ‘‘take Care that the Laws be faithfully 

executed.’’ 44 The word ‘‘faithfully’’ is, perhaps, a broad grant of discretion, but it is 

also a real and important constraint. The President cannot suspend laws altogether. 

He cannot favor unenacted bills over duly enacted laws. And he cannot discriminate 

on the basis of politics in his execution of the laws. The President has crossed all 

three of these lines. 

Mr. GOODLATTE. Thank you. 

Mr. Lazarus, welcome. 

TESTIMONY OF SIMON LAZARUS, SENIOR COUNSEL, 

THE CONSTITUTIONAL ACCOUNTABILITY CENTER 

Mr. LAZARUS. Thank you very much, Mr. Chairman, and thank 

you, Mr. Ranking Member Conyers and all of the Members of the 

Committee who are here. 

I am afraid I am going to have to disagree with my colleagues 

on the panel who have spoken so far. Brandishing the Take Care 

Clause has become a favorite talking point for opponents of an 

array of Obama administration policies and actions. 

All of these efforts, or at least the ones with which I am familiar, 

are in reality—all these efforts to import the Constitution into 

what are in reality political and policy attacks are really rhetorical 

make-weights. They mock the text and original meaning of the 

Take Care Clause. They flout long-established Supreme Court 

precedent, and they contradict the consistent practice of all modern 

presidencies, Republican and Democratic, to implement complex 

and consequential regulatory programs as Congressman Conyers 

pointed out. 

These critics fault the Obama administration for many things, 

but essentially two kinds of things: one, making necessary adjustments in timing of implementation of laws and particularly the Affordable Care Act; and secondly, in matching immigration enforcement priorities with available resources and practical, humanitarian, and other exigencies. 
33 

But exercising presidential judgment for such reasons is precisely 

what the Constitution requires. It is precisely what the Framers 

expected when they established a separate executive branch under 

the direction of a nationnally elected President and charged him to 

take care that the laws be faithfully executed. 

So let’s first take a quick look at one of the targets of these 

charges and that is the phasing in of the ACA employer mandate, 

which has been called a blatant illegality and many other things. 

But in fact it is a routine, temporary course correction. 

What exactly did the Administration do? On July 2nd, it announced the decision to postpone for 1 year the January 1, 2014 

effective date for the ACA requirement that large employers provide their workers with health insurance or pay a tax. This and 

other subsequently announced delays related to the ACA do not 

constitute refusals to enforce the ACA at all. On the contrary, they 

are merely phasing in adjustments designed to ensure effective implementation of the overall statute in accord with Congress’ purposes. The Treasury Department’s announcement makes that clear 

and the proposed regulations that it has followed through on on 

September 5th make that clearer, as does Treasury’s statement 

that it intends to continue fine tuning those regulations and working with the people affected by them until they become finally effective. 

And I should emphasize that just after the Administration took 

this action, President George W. Bush’s HHS Secretary, Michael 

Leavitt, concurred that ‘‘the Obama administration’s decision to 

delay the employer mandate was wise.’’ That was based on his experience in phasing in the Medicare Part D prescription drug benefit. 

So I have to say that hyperventilating about how extraordinary 

and unprecedented and unconstitutional these delays are is just 

that. It is hyperventilation and it is contrary to obvious historical 

fact. 

Nor is the 1-year delay of the employer mandate an affront to the 

Constitution. The Framers could have prescribed simply that the 

President execute the laws. So why did they add ‘‘faithfully’’ and 

‘‘take care’’? I have to disagree respectfully with Professor 

Rosenkranz and Professor Turley about their explanation of the 

history and original meaning of the clause. Obviously, they were 

taking pains to clarify that the President’s duty is to implement 

laws in good faith, hence the word ‘‘faithfully,’’ and to exercise reasonable care, hence the words ‘‘take care,’’ in doing so. The fact is 

that scholars on both the left and the right concur that this broadly 

worded phrasing means that the President is to exercise judgment 

and to handle his enforcement duties with fidelity to all laws, including indeed the Constitution. 

As a legal and practical matter, the President’s phase in of the 

employer mandate and other ACA provisions is well within his job 

description. So is the DACA program, the Deferred Action on 

Childhood Arrivals. I am not going to go into that now, but Congressman Conyers explained why that is true, and in my written 

statement, we do so also. 

I have to say one quick word about what I know that my good 

friend and frequent debating partner, Michael Cannon, is going to 
34 

1White House Statement, ‘‘We’re Listening to Businesses about the Health Care Law’’ (July 

2, 2013), available at http://www.whitehouse.gov/blog/2013/07/02/we-re-listening-businessesabout-health-care-law. 2 Akhil Reed Amar, America’s Constitution: A Biography 195 (2006): The sweeping provisions 

of Article II, including the Take Care clause ‘‘envisioned the president as a generalist focused 

on the big picture. While Congress would enact statutes and courts would decide cases one at 

a time, the president would oversee the enforcement of all the laws at once—a sweeping mandate that invited him to ponder legal patterns in the largest sense and inevitably conferred some 

discretion on him in defining his enforcement philosophy and priorities.’’ 

focus on and that is his theory—and he gets a lot of credit for 

thinking it up and marketing it—his theory that Affordable Care 

Act premium assistance tax credits and subsidies must be available 

to all—his theory that they are only available to Americans who 

happen to live in States that have set up their own exchanges. I 

cannot go into detail about this unfortunately. Perhaps in the questioning, I will be able to do that. 

But his theory is that a few phrases in this enormous statute 

have to be construed in a way that would stiff millions of people 

who were the intended beneficiaries of the act. 

Am I over? I am over. 

The fact is that that is not the correct construction of the act, 

and perhaps we will be able to talk about that further. 

[The prepared statement of Mr. Lazarus follows:] 

Prepared Statement of Simon Lazarus, Senior Counsel, 

The Constiutional Accountability Center 

My thanks to the Chair and members of the House Judiciary Committee for inviting me to testify in this inquiry into the provision of Article II, Section 3 of the Constitution, which provides that the President ‘‘take care that the laws be faithfully 

executed.’’ 

I am Senior Counsel to the Constitutional Accountability Center, a public interest 

law firm, think tank, and action center dedicated to the progressive promise of the 

Constitution’s text and history. 

Recently, opponents of the Affordable Care Act (ACA), have charged that President Obama broke the law and abused his constitutional authority, when, 

on July 2, his administration announced a one-year postponement of the January 

1, 2014 effective date for the ACA requirement that large employers provide their 

workers with health insurance or pay a tax.1 Specifically, opponents claim that this 

decision ran afoul of the ‘‘Take Care’’ clause quoted above. Indeed, brandishing the 

‘‘Take Care’’ clause appears to have become a favored talking point for opponents 

of an array of Obama administration policies and actions. I presume that this hearing will address several of these instances. 

All of these efforts to import the Constitution into what are in reality political and 

policy debates are rhetorical make-weights. They mock the text and original meaning of the Take Care clause. They flout long-established Supreme Court precedent 

applying the relevant constitutional provisions. And they contradict the consistent 

practice of all modern presidencies, Republican and Democratic, to responsibly implement complex and consequential regulatory programs. These critics fault the 

Obama Administration for making necessary adjustments in timing and matching 

enforcement priorities with resources and practical, humanitarian, and other exigencies. But exercising presidential judgment in carrying laws into execution is precisely what the Constitution requires. It is precisely what the framers expected, 

when they established a separate Executive Branch under the direction of a nationally elected President, and charged him to Take Care that the Laws be Faithfully 

Executed.2 Certainly, in the policy areas with which I am familiar, that is precisely 

what the President Obama and the members of his administration are doing—whatever one may think of their actions from a policy or political perspective. 

In this written statement, I will focus on the ACA employer mandate issue, and 

address three other issues as to which ACA opponents have woven a Take Care 

clause claim into their policy and political attacks. I will also address one other 

Obama administration action that has come under similar constitutional challenge, 

the June 2012 decision of the Department of Homeland Security to defer action for 
35 

3Michael W. McConnell, ‘‘Obama Suspends the Law,’’ The Wall Street Journal (July 8, 2013), 

available at: http://online.wsj.com/article/SB10001424127887323823004578591503509555268 

.html. 4Mark J. Mazur, United States Department of the Treasury, ‘‘Continuing to Implement the 

ACA in a Careful, Thoughtful Manner’’ (July 2, 2013), available at http://www.treasury.gov/connect/blog/pages/continuing-to-implement-the-aca-in-a-careful-thoughtful-manner-.aspx. 5Letter from Mark J. Mazur, United States Department of the Treasury to the Honorable 

Fred Upton, Chairman, Committee on Energy and Commerce, Washington, D.C., 9 July 2013, 

available at http://democrats.energycommerce.house.gov/sites/default/files/documents/UptonTreasury-ACA-2013-7-9.pdf. 6 United States Department of the Treasury Press Release, ‘‘Treasury Issues Proposed Rules 

for Information Reporting by Employers and Insurers Under the Affordable Care Act’’ (September 5, 2013), available at http://www.treasury.gov/press-center/press-releases/Pages/ 

jl2157.aspx. 7Michael O. Leavitt, ‘‘To implement Obamacare, look to Bush’s Medicare reform,’’ Washington 

Post (July 12, 2013), available at http://www.washingtonpost.com/opinions/to-implementobamacare-the-right-way-look-to-bushs-medicare-reform/2013/07/12/c2031718-e988-11e2-8f22-de 

4bd2a2bd39lstory.html. 

certain undocumented young people who came to the U.S. as children and have pursued education or military service here. 

An article I wrote on the ACA employer mandate issue appeared in The Atlantic 

on July 17 of this year. Another article, on the availability of ACA premium assistance tax credits and subsidies on federally facilitated as well as state-managed 

health insurance exchange market-places, appeared in The New Republic for May 

2, 2013. In addition, I testified on the latter subject before the Subcommittee on Energy Policy, Health Care, & Entitlements of the House Committee on Government 

Oversight & Reform on July 31, 2013. This statement draws upon these writings. 

I ask that the Committee include my July 31 written testimony in the record of this 

hearing. 

PHASING IN THE ACA EMPLOYER MANDATE: 

‘‘BLATANT ILLEGALITY’’ OR ROUTINE TEMPORARY COURSE-CORRECTION?

Critics have labeled the employer mandate postponement a ‘‘blatantly illegal 

move’’ that ‘‘raises grave concerns about [President Obama’s] understanding’’ that, 

unlike medieval British monarchs, American presidents have, under Article II, Section 3 of our Constitution, a ‘‘duty, not a discretionary power’’ to ‘‘take Care that 

the Laws be faithfully executed.’’ 3

These portentous indictments ignore what the Administration actually decided 

and how it has delimited the scope and purpose of its decision. The Treasury Department’s announcement provides for one year of ‘‘transition relief,’’ to continue 

working with ‘‘employers, insurers, and other reporting entities’’ through 2014 to revise and engage in ‘‘real-world testing’’ of the implementation of ACA reporting requirements, simplify forms used for this reporting, coordinate requisite public and 

private sector information technology arrangements, and engineer a ‘‘smoother transition to full implementation in 2015.’’ 4 The announcement described the postponed 

requirements as ‘‘ACA mandatory’’—i.e., not discretionary or subject to indefinite 

waiver. On July 9, Assistant Treasury Secretary Mark Mazur added, in a letter to 

House Energy and Commerce Committee Chair Fred Upton, that the Department 

expects to publish proposed rules implementing the relevant provisions ‘‘this summer, after a dialogue with stakeholders.’’ 5

A month ago, on September 5, the Treasury Department issued those proposed 

rules. They detail proposed information reporting requirements for insurers and 

large employers, reflecting, the Department stated, ‘‘an ongoing dialogue with representatives of employers, insurers, and individual taxpayers.’’ It appears from the 

Department’s release that it intends, through comments that will be received on the 

proposed rules, to continue fine-tuning ways ‘‘to simplify the new information reporting process and bring about a smooth implementation of those new rules.’’ 6

In effect, the Administration explains the delay as a sensible adjustment to phasein enforcement, not a refusal to enforce. And its actions validate that characterization—as any court that had occasion to consider the matter would surely agree. 

Indeed, shortly after the initial July 2 announcement, Michael O. Leavitt, who 

served as Health and Human Services Secretary under President George W. Bush, 

concurred that ‘‘The [Obama] Administration’s decision to delay the employer mandate was wise.’’ 7 Secretary Leavitt made this observation based on his own experience with the Bush Administration’s initially bumpy but ultimately successful 

phase-in of the prescription drug benefit to Medicare, which was passed in 2003 and 

implemented in 2006. 
36 

8 Ezekiel J. Emanuel, ‘‘Obama’s Insurance Delay Won’t Affect Many,’’ New York Times (July 

3, 2013), available at http://opinionator.blogs.nytimes.com/2013/07/03/obamas-insurance-delaywont-affect-many/?lr=0. 9To be sure, some administrative ‘‘delays’’ have in fact constituted de facto decisions not to 

enforce or implement laws, indefinitely and for policy reasons. For example, during the administration of President George W. Bush, EPA was frequently criticized in such terms for shelving 

a broad spectrum of regulations and other initiatives. In at least one highly visible instance, 

involving the agency’s mandate to determine whether greenhouse gases are pollutants requiring 

regulation under the Clean Air Act, the Supreme Court ordered EPA to institute formal proceedings to make such a determination. Massachusetts v. EPA, 549 U.S. 497 (2007) 10The Administrative Procedure Act, 5 U.S.C. § 706. 11Telecommunications Research and Action Center, et al. v. FCC, 750 F.2d 70, 80 (1984). 12 Heckler v. Chaney, 470 U.S. 821, 831–32 (1985). 13 470 U.S. at 833 n.4. 

Experience so far strongly bears out Secretary Leavitt’s expectation that delaying 

the employer mandate reporting requirements to simplify and improve them would 

facilitate smooth implementation of those provisions, without undermining the rest 

of the ACA, or Congress’ broad goals in enacting it. The vast majority of the nation’s 

six million employers—96%—employ fewer than 50 workers, and are therefore not 

covered by the employer mandate. Of those 200,000 that are covered, at least 94% 

already offer health insurance; so, during 2014—the one-year period during which 

those employers will not be penalized for failing to insure their employees—a relatively small number of workers will remain uninsured because of the delayed implementation of the employer mandate. And even those workers will, during 2014, 

be eligible for policies marketed on ACA exchanges and also for premium assistance 

subsidies.8

Though ‘‘wise,’’ is the current postponement ‘‘illegal?’’ On the contrary,Treasury’s 

Mazur wrote to Chair Upton, such temporary postponements of tax reporting and 

payment requirements are routine, citing numerous examples of such postponements by Republican and Democratic administrations when statutory deadlines 

proved unworkable. 

Across federal agencies, failure to meet statutory deadlines for promulgating regulations or taking other regulatory actions is, inevitably, a routine feature of implementing complex regulatory laws like the ACA. To take one particularly well-known 

example, the Environmental Protection Agency, under Republican and Democratic 

administrations, has often found it necessary to phase-in implementation of requirements beyond statutory deadlines, to avoid premature actions that were poorly 

grounded or conflicted with other mandates applicable to EPA or other agencies. 

These, of course, are precisely the types of practical considerations that the Treasury Department has cited for postponing implementation of the reporting requirements pertinent to the employer mandate, and the mandate itself. Last year, as one 

of many examples, EPA delayed promulgation of Secondary National Ambient Air 

Quality Standards for Oxides of Nitrogen and Sulfur, over the objection of some environmental groups, on the pragmatic ground that there is too much scientific uncertainty to enable the Agency to promulgate new standards with the requisite scientific basis.9

Applicable judicial precedent places such timing adjustments well within the Executive Branch’s lawful discretion. To be sure, the federal Administrative Procedure 

Act authorizes federal courts to compel agencies to initiate statutorily required actions that have been ‘‘unreasonably delayed.’’ 10 But courts have found delays to be 

unreasonable only in rare cases where, unlike this one, inaction had lasted for several years, and the recalcitrant agency could offer neither a persuasive excuse nor 

a credible end to its dithering. In deciding whether a given agency delay is reasonable, current law admonishes courts to consider whether expedited action could adversely affect ‘‘higher or competing’’ agency priorities, and whether other interests 

could be ‘‘prejudiced by the delay.’’ 11 Even in cases where an agency outright refuses to enforce a policy in specified types of cases—not the case here—the Supreme 

Court has declined to intervene. As former Chief Justice William Rehnquist noted 

in a leading case,12 courts must respect an agency’s presumptively superior grasp 

of ‘‘the many variables involved in the proper ordering of its priorities.’’ Chief Justice Rehnquist suggested that courts should defer to Executive Branch judgment unless an ‘‘agency has consciously and expressly adopted a general policy that is so 

extreme as to amount to an abdication of its statutory responsibilities.’’ 13 The 

Obama Administration has not and is not about to abdicate its responsibility to implement the statute on whose success his historical legacy will most centrally depend. 

Nor is the one-year delay of the employer mandate an affront to the Constitution. 

In the relevant constitutional text, note the term, ‘‘faithfully,’’ and the even more 
37 

14 Initial drafts of what became what is now known as the ‘‘Take Care’’ clause provided simply 

that the President was to ‘‘carry into execution the national laws.’’ In July 1787, in the Committee of Detail, charged with drafting language for the full convention to consider, there was 

debate over the phrase ‘‘the power to carry into execution,’’ and when the Committee returned, 

that phrase had been removed, the new ‘‘take care language’’ emerged in place of the former 

phrase. As Farrand notes, some of the phrases under debate included (Max Farrand, The 

Records of the Federal Convention of 1787, Volume II 171): (He shall take care to the best of 

his ability that the laws) (It shall be his duty to provide for the due & faithful exec—of the 

Laws) of the United States (be faithfully executed) {to the best of his ability}. Ultimately, the 

Committee on Style adopted the phrase ‘‘take care that the laws be faithfully executed’’ into constitutional text in September 1787. 15See Stephen G. Calabresi & Saikrishna B. Prakash, ‘‘The President’s Power to Execute the 

Laws,’’ 104 Yale L. J. 541 (1994); see also Lawrence Lessig & Cass R. Sunstein, ‘‘The President 

and the Administration,’’ 94 Colum. L. Rev. 1 (1994). 16McConnell, ‘‘Obama Suspends the Law.’’ 17http://www.cms.gov/CCIIO/Resources/Letters/Downloads/commissioner-letter-11-14- 

2013.PDF. 

striking phrase, ‘‘take care’’ (which, by the way, is not included in the title of this 

hearing). The framers could have prescribed simply that the President ‘‘execute the 

laws.’’ Why did they add ‘‘faithfully’’ and ‘‘take care?’’ 14 Defining the President’s 

duty in this fashion necessarily incorporated—or reaffirmed the previously implicit 

incorporation—of the concept that the President’s duty is to implement laws in good 

faith, and to exercise reasonable care in doing so. Scholars on both left and right 

concur that this broadly-worded phrasing indicates that the President is to exercise 

judgment, and handle his enforcement duties with fidelity to all laws, including, indeed, the Constitution.15 Both Republican and Democratic Justice Departments 

have consistently opined that the clause authorizes a president even to decline enforcement of a statute altogether, if in good faith he determines it to be violative 

of the Constitution. To be sure, as one critic has noted, a president cannot ‘‘refuse 

to enforce a statute he opposes for policy reasons.’’ 16 But, while surely correct, that 

contention is beside the point here. 

The Administration has not postponed the employer mandate out of policy opposition to the ACA, nor to any specific provision of it. It is ludicrous to suggest otherwise, and at best misleading to characterize the action as a ‘‘refusal to enforce’’ at 

all. Rather, the President has authorized a minor temporary course correction regarding individual ACA provisions, necessary in his Administration’s judgment to 

faithfully execute the overall statute, other related laws, and the purposes of the 

ACA’s framers. As a legal as well as a practical matter, that’s well within his job 

description. 

In effect, ACA opponents’ constitutional argument to the contrary amounts to asserting that the Administrative Procedure Act itself ratifies unconstitutional behavior. As noted above, the APA recognizes that delayed implementation of rules, beyond statutory deadlines, can come within the Executive Branch’s lawful discretion, 

as long as such delays are ‘‘reasonable.’’ Opponents’ claim is that the ‘‘take care’’ 

clause must be interpreted to condemn any deviation from a statutory deadline for 

implementing a regulation, no matter how reasonable. This implausible interpretation flouts, not only Congress’ understanding as expressed through the text of the 

APA, but administrative and judicial precedent as well. 

IS THE ADMINISTRATION’S POSTPONEMENT, IN SPECIFIED INSTANCES, FOR ONE YEAR

ENFORCEMENT OF ACA INSURANCE MARKET REFORMS AN ‘‘UNREASONABLE DELAY’’ 

UNDER THE APA, OR A VIOLATION OF THE CONSTITUTION’S ‘‘TAKE CARE’’ CLAUSE?

On November 14, HHS’ Director of the Center for Consumer Information and Insurance oversight, Gary Cohen, sent a letter to all state insurance commissioners, 

in which he announced a ‘‘transitional policy’’ of permitting health insurers to 

‘‘choose to continue coverage’’ for one additional year, for policies commencing between January 1, 2014, and October 1, 2014, that would otherwise be terminated 

or cancelled,’’ because such policies are out of compliance with several of the ACA’s 

insurance market reform protections.17 The letter stated that ‘‘State agencies responsible for enforcing the specified market reforms are encouraged to adopt the 

same transitional policy with respect to this coverage.’’ As this language indicates, 

the Administration was thereby not changing the law, or giving employers a waiver 

from a statutory requirement, but instead merely announcing a ‘‘transitional’’ enforcement policy for the federal government—one that state regulators are free to 

emulate or not, as they see fit. As of last week, many state insurance regulatory 

authorities, in states including Alaska, Arkansas, California, Colorado, Connecticut, 

Indiana, Maryland, Massachusetts, Minnesota, Nebraska, New York, Oklahoma, Oregon, Rhode Island, Vermont, Virginia, Washington, and West Virginia, as well as 
38 

18The Commonwealth Fund Blog posted on November 27 a review of states which have, have 

not, and are still deciding how they wish to respond to the Administration’s ‘‘encouragement,’’ 

together with explanations of the consequences of alternative state resolutions. http:// 

www.commonwealthfund.org/Blog/2013/Nov/State-Decisions-on-Policy-CancellationsFix.aspx?omnicid=20. 19Department of Homeland Security Press Release, ‘‘Secretary Napolitano Announces Deferred Action Process for Young People Who Are Low Enforcement Priorities’’ (June 15, 2012). 20See Shoba Sivaprasad Wadhia, In Defense of DACA, Deferred Action, and the DREAM Act, 

91 Tex. L. Rev. 59 (2013). 21Letter from 128 academic immigration law experts to President Obama, Washington, D.C., 

28 May 2012, available at http://www.law.uh.edu/ihelg/documents/ExecutiveAuthorityFor 

DREAMRelief28May2012withSignatures.pdf. 

Washington, D.C., have declined to adopt the transitional policy, and, hence, will 

bar issuance of policies inconsistent with the ACA market reform requirements, as 

of January 1, 2014, as prescribed in the statute.18 As with the one-year delay of finalization of the employer mandate reporting requirements and enforcement of the 

mandate, this ‘‘encouragement’’ of state regulators to permit a one-year transitional 

renewal of non-compliant individual insurance policies would clearly not be an unreasonable delay under the Administrative Procedure Act, and would not violate the 

constitutional Take Care clause. 

DOES THE DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA) PROGRAM ‘‘BREACH’’ 

THE PRESIDENT’S DUTY UNDER THE ‘‘TAKE CARE’’ CLAUSE—OR APPROPRIATELY

PRIORITIZE ENFORCEMENT PRIORITIES, WHILE FAITHFULLY IMPLEMENTING THE IMMIGRATION LAWS?

Critics have also alleged that the Administration’s ‘‘Deferred Action for Childhood 

Arrivals (DACA) program constitutes a ‘‘breach’’ of the President’s duty to take care 

that the laws be faithfully executed. On June 15, 2012, President Obama signed a 

memorandum calling on the Department of Homeland Security to defer action for 

certain undocumented young people who came to the U.S. as children and have pursued education or military service here.19 On August 15, 2012, the Department 

began accepting applications for deferred action status under the program. Contrary 

to the critics, this action violates neither the Constitution nor the immigration laws, 

and is, indeed similar to the prosecutorial discretion actions taken by other presidents, of both parties, that have been part and parcel of immigration enforcement 

policy for decades. 

To begin with, it is specious to suggest that the Obama administration is systematically failing in its obligation to enforce the immigration laws. On the contrary, 

the administration has detained and deported noncitizens at record levels—approximately 400,000 annually, compared to 150,542 in 2002. The 400,000 figure is not 

an accident. Congress has provided funding to cover 400,000 removals per year. This 

is less than 4% of the total estimated population of unauthorized residents of the 

country—11.5 million. Setting enforcement priorities is, obviously, essential, given 

this huge shortfall of available resources.20 The criteria prescribed in the DACA program are entirely sensible, and in keeping with prioritization criteria long characteristic of immigration enforcement. 

As 128 academic immigration law experts explained in a letter to the President 

outlining his authority to institute a program like DACA: 

Deferred action is a long-standing form of administrative relief. . . . It is 

one of many forms of prosecutorial discretion available to the Executive 

Branch. A grant of deferred action can have any of several effects. . . . it 

can prevent an individual from being placed in removal proceedings, suspend any proceedings that have commenced, or stay the enforcement of any 

existing removal order. It also makes the recipient eligible to apply for employment authorization. . . . [T]he U.S. Supreme Court has made clear 

that decisions to initiate or terminate enforcement proceedings fall squarely 

within the authority of the Executive [citing Heckler v. Chaney, 460 U.S. 

821, 831 (1985)]. In the immigration context, the Executive Branch has exercised its general enforcement authority to grant deferred action since at 

least 1971. Federal courts have acknowledged the existence of this executive power at least as far as back as the mid-1970s.21

Moreover, the Obama administration’s decision to use deferred action in the systematic manner it has with DACA is not at all exceptional. In 2005, for example, the 

George W. Bush administration announced deferred action for the approximately 

5,500 foreign academic students caught in the aftermath of Hurricane Katrina— 

quite appropriately. In 2009, then-DHS Secretary Napolitano announced deferred 
39 

22Wadhia at 68. 23 Arizona v. United States, 132 S. Ct. 2492, 2499 (2012). 24 77 Fed. Reg. 30,377, 30,378, 30,387 (May 23, 2012) 25See, e.g., Michael Cannon, ‘‘No Obamacare Exchanges,’’ National Review Online (April 12, 

2012), http://www.nationalreview.com/articles/295773/no-obamacare-exchanges-michael-f-cannon; 

Dan Diamond, ‘‘Could Halbig et al. v. Sebelius Sink Obamacare, The Health Care Blog, (June 

11, 2013) (quoting Michael Greve: ‘‘This is for all the marbles.’’), http://thehealthcareblog.com/ 

blog/2013/06/11/could-halbig-et-alv-sebelius-sink-obamacare/. 

action for the widows of U.S. citizens for two years, to ‘‘allow these individuals and 

their children an opportunity to stay in the country that has become their home 

while their legal status is resolved.’’ Secretary Napolitano also used defer action to 

keep immigrants who are the spouses, parents, and children of military personnel 

together with their families. Agency memoranda providing guidance for deferred action programs frequently stated that such exercises of ‘‘prosecutorial discretion . . . 

are designed to ensure that agency resources are focused on our enforcement priorities, including individuals who pose a threat to public safety, are recent border 

crossers, or repeatedly violate our immigration laws.’’ 22 The DACA program implements similar criteria and is well within the immigration enforcement approaches 

of this and past administrations. 

Just a year and a half ago, a 5–3 majority of the Supreme Court opined that ‘‘A 

principal feature of the removal system is the broad discretion exercised by immigration officials. . . . Federal officials, as an initial matter, must decide whether it 

makes sense to pursue removal at all. . . .’’ The Court—in an opinion by Justice 

Anthony Kennedy, joined by Chief Justice Roberts, and Associate Justices Ginsburg, 

Breyer, and Sotomayor—went on to specify that ‘‘Discretion in the enforcement of 

immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime.’’ 23 That very recent analysis by a broadbased Supreme Court majority is completely at odds with the critics’ cramped interpretation of the President’s immigration enforcement discretionary authority, let 

alone their equally cramped interpretation of the Constitution’s Take Care clause. 

Indeed, these critics’ reliance upon the Take Care clause seems particularly out 

of place, for it is precisely that provision which, construed as it has always been 

by the courts, is the source of the President’s broad authority to exercise prosecutorial discretion. As the Supreme Court held in the leading case, Heckler v. Chaney, 

cited above, decisions not to indict or to institute civil proceedings 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.’’’ Obviously, faithful execution does not empower the President to disregard statutory requirements, but it requires applying specific requirements in a 

manner that is faithful to effective implementation of the overall statutory scheme, 

to the other affected laws, and to the Constitution. That is precisely what the 

Obama Administration is attempting to do as it phases in an exceptionally complex 

and consequential new law. 

THE OBAMA ADMINISTRATION HAS CORRECTLY DETERMINED THAT ACA PREMIUM ASSISTANCE TAX CREDITS AND SUBSIDIES MUST BE AVAILABLE TO ALL ELIGIBLE AMERICAS, 

WHETHER THEY RESIDE IN STATES THAT OPERATE THEIR OWN EXCHANGES OR IN

STATES WITH FEDERALLY FACILITATED EXCHANGES

Affordable Care Act opponents have taken the Treasury Department to task—and 

to court—for adopting a regulation in May 2012 24 that affirms that ACA premium 

assistance tax credits and subsidies are available to all eligible Americans nationwide, whether they reside in states that have elected to operate their own insurance 

exchange market-places or in states that have elected to have the Federal government operate the exchange covering their residents. These critics, of whom my copanelist Michael Cannon was among the first and most energetic, assert that Treasury’s interpretive regulation ‘‘rewrites the law.’’ In fact, however, it is Mr. Cannon 

and his allies who would rewrite the ACA. And from their standpoint as die-hard 

ACA opponents, for a good reason. Their invitation to the courts to impose their interpretation is, in their own terms, a play ‘‘for all the marbles.’’ In the 33 or so 

states now utilizing federally facilitated exchanges, their proposed reinterpretation 

would, they gloat, ‘‘sink’’ the ACA ‘‘drive a stake through the heart of Obamacare,’’ 

and ‘‘threat[en]’’ its ‘‘survival.’’ 25

When the law was enacted in March 2010, no one, on either side of the aisle, had 

ever heard of, let alone embraced, the Cannon interpretation. The ACA’s fiercest 

critics agreed with its most fervent supporters about one thing: that it had, and has, 

a clear and simply stated goal—‘‘to achieve near-universal health insurance cov-
40 

erage,’’ and they understood that the premium assistance necessary to achieve that 

goal would be available in all states. To my knowledge, not until late in 2011 did 

Mr. Cannon surface his claim to the contrary. He said at the time that he ‘‘was first 

made aware of this aspect of the ACA’’ in December 2010, nine months after enactment. To ACA opponents probing for any opportunity, no matter how far-fetched, 

to impede the law’s implementation, the discovery of this apparent ‘‘glitch’’ must 

have been invigorating. 

But In fact, everyone was right at the beginning. The ACA’s text does not sabotage its universally acknowledged purpose of ensuring access to health insurance for 

millions of Americans who cannot now afford it. To make their implausible case to 

the contrary, the opponents snatch a few isolated phrases out of context, and ignore 

the rest of the 2700 page statute. Numerous provisions of the law confirm that eligible residents of all states shall receive the premium assistance they need. 

In a nutshell, the text of the ACA provides that if state decides not to set up an 

Exchange, the federal government is to step in and set one up in its place. The same 

rules apply to all Exchanges, whether it’s the states or the federal government that 

operates them. Under the opponents’ tortured reading, all sorts of individual provisions in the statute do not work, and, indeed, the exchange marketplaces themselves 

will not work. That result, of course, is precisely what these die-hard opponents intend. But it’s the opposite of what the Congress that enacted the ACA intended. 

In order to justify their implausible reading of the ACA’s text, opponents have 

concocted an even more head-scratching claim—that the sponsors of the law ‘‘purposefully’’ designed it to achieve this self-immolation. Their theory is that, by threatening to deprive residents of states of premium tax credits, Congress sought to ‘‘coerce’’ states to set up Exchanges. If true, what the Act really means, and what its 

sponsors really intended, is a result that would not only cancel the core benefit the 

law sought to confer, for the core constituency it aimed to benefit. More remarkably, 

under the opponents’ misread, the ACA’s sponsors would have intentionally handed 

over to ACA opponents in state capitols the power to subvert the law in their states. 

In effect, they would have given Mr. Cannon’s political allies that ‘‘stake’’ and invited them to drive it through the heart of the ACA. Is that plausible? 

Unsurprisingly, there is not a single piece of evidence in the legislative record to 

support the notion that Congress was threatening states into setting up Exchanges. 

There is no mention of this idea anywhere in the voluminous pages of the debate 

over the Affordable Care Act. No one, supporter or opponent of the law, brought it 

up. 

And certainly no one ever communicated to any state official that they risked depriving their residents of affordable health care if they refused to set up their own 

Exchanges. There is no such thing as a stealth threat. A threat must be communicated. Here, none ever was. In and of itself, this is fatal to the upside-down interpretation opponents are asking the courts to embrace. 

How likely is it that a majority of the Supreme Court, or any court, will endorse 

the perverse premise of these ACA opponents, and bar access to affordable quality 

health care for millions of people whom Congress specifically intended to benefit? 

Such a decision, especially if rendered by an ideologically divided court, will likely 

appear to the public as a radical ratcheting up of the regrettable tradition of Bush 

v. Gore—though less principled and more transparently political. I doubt that the 

judiciary will take the bait these lawsuits tender, and venture out on that limb. 

And, self-evidently, it is frivolous to suggest that the Obama Administration is 

violating the Constitution’s mandate to take care that the laws be faithfully executed by implementing the ACA’s exchange provisions in a manner that is faithful 

to the ACA’s text, to the purpose of the Congress that enacted it, and to the needs 

of millions of hard-working Americans for access to affordable health insurance. 

CONCLUSION

In sum, the various critiques being vetted here, of the Affordable Care Act and 

other Obama Administrative initiatives, reflect political and policy-driven criticisms 

routine in a democratic polity, especially one as polarized as we are today. But attempts to wrap those arguments in the Constitution just thicken the political fog. 

They deserve no attention from people who are seriously interested in evaluating 

competing policy and political claims, or in facilitating, rather than obstructing, resolution of those differences. 

Mr. GOODLATTE. Thank you, Mr. Lazarus. 

Mr. Cannon, welcome. 
41 

TESTIMONY OF MICHAEL CANNON, DIRECTOR OF 

HEALTH POLICY STUDIES, CATO INSTITUTE 

Mr. CANNON. Thank you, Mr. Goodlatte and Mr. Conyers and 

Members of the Committee. 

I want to start off by saying that the concerns that I am going 

to be sharing with you today are not born of partisanship. It is no 

secret that I have worked for Republicans. I myself am not a Republican. I am acutely aware of the last Republican President’s 

failure to execute the laws faithfully. In 2008, though I supported 

neither major party presidential candidate, I actually preferred 

Barack Obama to his opponent in part because he promised to curb 

such abuses by the executive, and I praise President Obama for 

doing more than even many Libertarians to celebrate the gains in 

equality and freedom our Nation has secured for women, for African Americans, for gays, and for lesbians. 

Article II, section 3 of the Constitution, to which every President 

swears an oath, commands that the President shall take care that 

the laws be faithfully executed. Fealty to this duty is essential for 

maintaining our system of Government and public order. 

The law is a reciprocal pact between the Government and the 

governed. Public order requires Government to remain faithful to 

the laws as much as it requires the citizenry to do so because if 

the actions of Government officials lead citizens to conclude that 

those officials are no longer meaningfully bound by the law, then 

citizens will rightly conclude that neither are they. 

Since he signed the Patient Protection and Affordable Care Act 

into law, President Obama has failed to execute that law faithfully. 

The President has unilaterally taken taxpayer dollars made 

available by the PPACA and diverted them from their congressionally authorized purposes toward purposes for which no Congress 

has ever appropriated funds. 

He has unilaterally and repeatedly rewritten the statute to dispense taxpayer dollars that no Federal law authorizes him to spend 

and that the PPACA expressly forbids him to spend. 

He has unilaterally issued blanket waivers to requirements that 

the PPACA does not authorize him to waive. 

At the same time, he has declined to collect taxes that the 

PPACA orders him to collect, he has unilaterally rewritten the 

statute to impose billions of dollars in taxes that the PPACA expressly forbids him to impose and to incur billions of dollars in debt 

that the statute expressly forbids him to incur. 

He has unilaterally rewritten the PPACA to allow health insurance products that the statute expressly forbids, and he has encouraged consumers, insurers, and State officials to violate a law 

that he himself enacted. 

And he has taken these steps for the purpose of forestalling 

democratic action by the people’s elected representatives in Congress. 

President Obama’s unfaithfulness to the PPACA is so wanton 

that it is no longer accurate to say that that statute is the law of 

the land. Today, with respect to health care at least, the law of the 

land is whatever one man says it is or whatever this divided Congress will let him get away with saying. What this one man says 

may flatly contradict Federal statute. It may suddenly confer bene-
42 

fits on favored groups or tax disfavored groups without representation. It may undermine the careful and costly planning done by 

millions of individuals and businesses. It may change from day to 

day. This method of lawmaking has more in common with monarchy than with democracy or a constitutional republic. 

This President’s failure or any President’s failure to honor his 

constitutional duty to execute the laws faithfully is not a partisan 

issue. The fact that Presidents from both parties violate this duty 

is cause not for solace. It is cause for even greater alarm because 

it guarantees that Presidents from both parties will replicate and 

even surpass the abuses of their predecessors as payback for past 

injustices. The result is that democracy and freedom will suffer no 

matter who occupies the Oval Office. 

I thank you and I look forward to your questions. 

[The prepared statement of Mr. Cannon follows:] 
43 

The President's Duty to Execute Faithfully 

the Patient Protection and Affordable Care Act 

Testimony of 

Michael F. Cannon 

Director of Health Policy Studies 

Cato Institute 

Before the 

Committee on the Judiciary 

United States House of Representatives 

December 3, 2013 

Chainnan Goodlatte, Ranking Member Conyers, and members of the Judiciary Committee, my 

name is Michael F. Cannon. I am the director of health policy studies at the Cato Institute. 

Founded in 1977, the Cato Institute is a non-partisan, non-profit, 501(c)(3) educational 

foundation located in Washington, D.C., whose mission is to promote the principles of individual 

liberty, limited government, free markets, and peace. To maintain its independence, the Cato 

Institute accepts no government funding. 

Thank you for the opportunity to otIer my perspective on the president'S constitutional duty to 

"take Care that the Laws be faithfully executed"! as it relates to the Patient Protection and 

Atlordable Care Act of20102 

Introduction 

Article ll, Section 3 of the US Constitution, to which every president swears an oath, 

commands that the president "shall take Care that the Laws be faithfully executed.,,3 Fealty to 

this duty is essential for maintaining our system of government and public order. 

The law is a reciprocal pact between the government and the governed. Public order requires 

government to remain faithful to the law as much as it requires the citizenry to do so. If the 

actions of government officials lead citizens to conclude that those officials are no longer 

meaningfully bound by the law, then citizens will rightly conclude that neither are they. 

Since he signed the Patient Protection and Atlordable Care Act (PPACA) into law on March 23, 

2010, President Barack Obama has failed to execute that law faithfully. 

1 U.S. Const. arL IT, § 3. 

2 T also ,,,ish to thank Jonathan H. Adler. the Johan Verheij Memorial Professor of La\" and Director of the Center 

for Business La,,\' and Regulation at the Case Westenl Resene UIll\·ersily School of Lm\', for his assistance \-\·ilh this 

testimony. 

1 U.S. Const. art. II, § 3. 
44 

The president has unilaterally taken taxpayer dollars made available by the PPACA and diverted 

them from their congressionally authorized purposes toward purposes for which no Congress has 

ever appropriated funds. 

He has unilaterally and repeatedly rewritten the statute to dispense taxpayer dollars that no 

federal law authorizes him to spend and that the PPACA expressly forbids him to spend. 

He has unilaterally issued blanket waivers to requirements that the PPACA does not authorize 

him to waive. 

At the same time he has declined to collect taxes the PPACA orders him to collect, he has 

unilaterally rewritten the statute to impose billions of dollars in taxes that the PPACA expressly 

forbids him to impose, and to incur billions of dollars in debt that the statute expressly forbids 

him to incur. 

He has unilaterally rewritten the PPACA to allow health insurance products that the statute 

expressly forbids. He has encouraged consumers, insurers, and state officials to violate a federal 

law he enacted. 

And he has taken these stepsfor the purpose offorestalling democratic action by the people's 

elected representatives in Congress. 

President Obama' s unfaithfulness to the PPACA is so wanton, it is no longer accurate to say the 

Patient Protection and Affordable Care Act is "the law of the land." Today, with respect to health 

care, the law of the land is whatever one man says it is - or whatever this divided Congress will 

let that one man get away with saying What this one man says may flatly contradict federal 

statute. It may suddenly confer benefits on favored groups, or tax disfavored groups without 

representation. It may undermine the careful and costly planning done by millions of individuals 

and businesses. It may change from day to day. This method oflawmaking has more in common 

with monarchy than democracy or a constitutional republic. 

Diverting Prevention Funds to Federal Exchanges 

A simple example of the president rewriting the PPACA is his redirection of nearly half a billion 

dollars that Congress appropriated for the law's Prevention and Public Health Fund toward the 

creation offederal health insurance "exchanges," for which Congress appropriated no funds. 

Earlier this year, the Washington Post reported, "The Obama administration plans to use $454 

million in Prevention Fund dollars to help pay for the federal health insurance exchange. That's 

45 percent of the $1 billion in Prevention Fund spending available [in 2013]."4 Senator Tom 

Harkin (D-IA) attacked the administration's attempt "to redirect that money to educating the 

4 Sarah Kliff, The Incredible Slninking Prevention Fund, Washington Post, Apr. 19,2013, at 

Ip tp'/h~y~' \"_._\~ _,~~lJjllgJgnpQ~i SglJilQ 199~{Y:~_QJ!h.---.bJQ~~/}Y1:!!20 _~3!\H/t~/1h~::iIJCJ~(FpJ9~~bJiL~"i l1g:pr©)':~Jll;iPI1-ft!]Js.k. 

2 
45 

public about the new health insurance marketplaces" as "a violation of both the letter and spirit 

of this landmark law'" 

Illegal Subsidies to Members of Congress 

The president has issued illegal subsidies to members of Congress for three years, and overruled 

career federal officials at the Office ofPersonnei Management by dictating that that agency 

would provide further illegal subsidies to members of Congress and their statfs for the purchase 

of health insurance through the PPACA's Small Business Health Options Program (SHOP) 

Exchanges. 

To ensure that members of Congress and their staffs would experience the PPACA in the same 

manner as the citizenry, the statute bars them from the Federal Employees Health Benefits 

Program (FEHBP), and effectively offers them only Exchange coverage as a substitute. The 

statute provides: 

Notwithstanding any other provision oflaw, after the effective date of this subtitle, the 

only health plans that the Federal Government may make available to members of 

Congress and congressional staff with respect to their service as a member of Congress or 

congressional staff shall be health plans that are created under this act. .. or offered 

through an exchange establi shed under thi s act.. 6 

Even though the Exchanges were not to become operative until 2014, this provision as written 

took effect immediately upon enactment7 And because it immediately barred members and statl' 

from the FEHBP, it also stripped them of the roughly $5,000 the federal Treasury pays toward 

the premiums ofFEHBP participants who select self-only coverage, or the roughly $11,000 it 

pays on behalf of those who choose family coverage. President Obama quite literally and 

perhaps unjustly signed a law throwing nearly all members of Congress and congressional staff 

out of their health plans, and cutting their pay by thousands of dollars per year. 

Rather than faithfull y execute that law, however, the president chose to keep providing that 

coverage to members and staff and to keep making those payments, as if nothing had happened. 

The president has been providing illegal coverage and illegal subsidies to members of Congress 

and congressional statl' for more than three years8 

Even after the Exchanges take full effect, this provision as written continues to strip members 

and staff of the "contribution" the federal government makes toward the premiums of those who 

participate in the FEHBP. Under federal law, those payments are available only for the purchase 

5 The Importance of the Prevention Fund to Save Lives and Money, Sen., IlJth Congo (2013). (statement of Sen. 

Tom Harkin, Chairman of the Senate Health Education, Labor, and Pensions Commitlee). 

6 Patient Protection and AiTordable Care AcL 42 U.S.C. § 18032 (20 I 0). 

RobcltPCaT Baffled b, Health Plan') So Ale Some La,,\mukcTS, NY Tnnes Apt 12,2010, at 

http-//v\ \\ \\. Tlvlimes.com/20 lOilH/13/u':l/PQlJlics/13health.hl1111. 

~ Jell}' Markon, Problem Over Health Coverage for Capitol Hill is Resoh·ed Washington Post. Apr. 2L 20lU, at 

http://Y,~nY. "tY<1shingtonpostcomlwp-dv rut content! m1ic le/20 1 0/04120/ AR2 0 1 OOL120051 (\3. htmL 

3 
46 

of plans within the FEHBP, not through the PPACA's Exchanges. Neither the PPACA nor any 

other federal statute authorizes the administration to continue making those payments on behalf 

of members and statY Nor does the PPACA allow employers to pay their employees' premiums 

through the law's (individual-market) American Health Benefits Exchanges. Nor does it permit 

large employers - much less the nation's largest employer - to purchase coverage for their 

employees through its Small Business Health Options Program (SHOP) Exchanges. As a result, 

Politico reports, "OPM initially ruled that lawmakers and staffers couldn't receive the subsidies 

once they went into the exchanges. ,,9 

After President Obama personally intervened,IO OPM reversed its ruling. The agency announced 

it would make those $5,000 or $11,000 payments on behalf of members and staff who obtained 

coverage through SHOP Exchanges. OPM's purported justification for this newfound authority 

does not withstand scrutiny. 11 

Instead, President Obama once again unilaterally rewrote federal law to give nearly every 

member of Congress and congressional staffer an illegal subsidy of $5,000 to $11,000 per year. 12 

Faithfully executing the law would have required the president to let the OPM's ruling stand, and 

let Congress address the matter through legislation. 

Spending Billions That the PPACA Expressly Forbids the President to Spend 

The president's most egregious violation of his duty to execute faithfully the PPACA is his 

attempt - under the rubric of that law - to tax, borrow, and spend billions of dollars that statute 

expressly prohibits him to spend. 13 

The relevant provisions of the Act are complex, but the law is abundantly clear. The PPACA 

authorizes the creation of state-specific health insurance "exchanges" that regulate health 

insurance within each state. It asserts that "Each State shall ... establish" an Exchange. It directs 

the Secretary of Health and Human Services to establish an Exchange in states that do not. 1t 

';) Jolm BreSIL.1han, Govenmlenl Shutdm\'n: John Boehner's pri\'ate fight [or Hill health subsidies, Politico, Oct. 1, 

2013, at l!He: //YU:Il~PQh1J~~Q~lJ!~lQ012QJ 31 tQ[JQl!!LQ9~11n~~_ hiJt-QJmm1lQ~rc su~iQ~~JE 6 lUM!Jll. 

10 John Bresnahan & Jake Shenl1:111, President Obam1 on Hill" s Obam.<1care Mess: I'm On It, Politico, JuI. 31,2013, 

at b!1Qi6~:n:\Y.ltQhtir~~gJnLsj:Ql}::UJllJm_?lQI~ilillR-J]~JJ-=JJQDj!h~aJ:('~jSQlllQ-=251lllb1ml- ("Presidellt Barack Obama 

privately told Democratic senators Wednesda~' he is now personally involved in resolving a heated dispute over how 

Obamacarc treats Capitol Hill aides and la\ynk1kers, according to senators in the meeting.") 

11 Doug Bodger, Congress IS Getting 0 Speck11 Deal Under Obmmcore, dougsbriefcase.com (Oct.!, 2013), 

htntfbl11~.9.!1.~ricfr.;:~~®I[!(Q19.si~"'9l!.gr~~~g..l~Jti.!L~JE.~i<:l1:g~<;ll-ob..D!llilC_~r£L. 

12 OrdiI1:1ry Americans who are suffering similar pay cuts as a result of the PPACA ,,,ill receive no such relief. 

Michael F. Call1lOll Congrcss's Obamacarc Waivcr, National Rcvicw, Aug. 6.2013, at 

h1 tp:!,\-'.''''' \\'" natiOl wJre\: 18\" .C01 III article'!] 5 5 ] 76/ con,gresss-obal nacme-\,\ ai \'e1"-mic 113<= 1-[ -cal mOll. 

13 See Jonathan Adler & Michael Cannon, Ta:\ation Without Representation: The Illegal IRS RLLle to Expand Ta:\ 

Credits Under the PPACA, 23 HealthM1trix L 119 (2013), 

ht1;p://pffi)9r~_?.3flLQQIJI/?.9DiPJl:p.~~5.~:{.I:Q?.~l?~tJnQ~_i~1-:..2JQQ7.~9_: see also Brief of Amicus Curiae Jonathan Adlcr & 

Mich.1el Calmon, King \'. Sebelius, No. 13-c\,-630 (E.D.V<l. NO\,. 27,2013), 

http://objectcato org/sites/cato.org!hles':pubs/pdfl"klng adler cannon amiclJs briefpd[ alld attached. 

4 
47 

offers health insurance subsidies'" to certain taxpayers who enroll in a qualified health plan 

"through an Exchange established by the State under Section 1311.",5 Finally, the PPACA 

exempts employers from its "free-rider penalty," and exempts millions of individual taxpayers 

from its individual-mandate penalties, if their states opt not to establish an Exchange. The 

lanb'llage of the statute is clear, consistent, and unambib'llous. 16 

Nevertheless, shortly after legal scholars brought this feature of the law to the public's attention 

in 20 II, 17 the Internal Revenue Service proposed a rule that would issue those subsidies - and 

impose the resulting taxes - through federal Exchanges as well as state-established Exchanges." 

Congressional Budget Office estimates indicate that issuing subsidies in the 34 states that have 

refused to establish Exchanges would cost taxpayers roughly $700 billion in the first 10 years. 19 

The president is literally threatening to tax, borrow, and spend hundreds of billions of dollars, 

without congressional authorization, and indeed in violation of the express language of his own 

health care law. 

The IRS proposed this rule with no apparent regard for the clear language of the statute. Despite 

public criticism and objections during the notice-and-comment period, the agency finalized its 

proposed rule in May 201220 yet cited neither any provision of the PP ACA nor any element of 

the legislative history in support of its "interpretation" of the law. 

My friend, Mr. Simon Lazarus, who is also on this panel, has defended the president's actions. 

Yet despite two years of searching for some provision of the statute, or some element of the 

legislative history, that would create ambiguity about the law's clear meaning or about Congress' 

intent, the president and his supporters have otl'ered neither. Mr. Lazarus could malce news today 

by unveiling such a discovery, but one suspects that if any such support for the president's 

actions existed, they would have discovered and oiTered it by now. In fact, the legislative history 

of the PPACA is fully consistent with the express language of the statute 21 

Unilateral, Blanket Waivers of the PPACA's Requirements 

The president has unilaterally and without authority altered the PPACA's e±l'ective dates by 

issuing blanket exemptions from both the PPACA's employer mandate and many of its health 

insurance reb'lliations. 

14 The PP ACA describes some of these subsidies as "premium-assistance tax credits. ' but they are tax reduction in 

name only. Functionally, they arc govcnnncnt outlays. 

1< LRC§ 36B(b)(2)(A), (b)(J)(B)(i), (b)(3)(C), & (e)(2). 

1 f, See Adler & Call1lOll, Health M1trix. slfpra: see also Adler & OUlllon, Anticus Brief, supra. 

]i See, e.g., JOl1Hlhan H. Adler, Cooperation. Commandeering or CrO\\'ding Out? Federallnten:ention and State 

Choices in Heallh Care Policy, 20 Kan. 1. L. & Pub. Pol'y 199 (2011). 

1R Health Insurance Premimll Tax Credit, 76 Fed. Reg. 50,931, 50,93~ (Aug. 17,2011). 

1,} j)'ee Adler & Call1lOll, HealthM1trix, Slfpra, at 138. 

,,, Health Insurance Premium Tn Credit, 77 Fed. Reg. 30,377,30,377 (May 23,1(12) (to be codified at 16 C.F.R. 

pi I). 

21 See Adler & Call1lOll, Health Matrix, supra; see also Adler & Call1lOll, Anticus Brief, supra. 

5 
48 

After announcing in May 2012 that he would unilaterally impose the PPACA's employer 

mandate in 34 states where he has no authority to do so, in July 2013, President Obama 

unilaterally granted a one-year plenary reprieve from that mandate 22 Again, Sen. Tom Harkin, 

an author and supporter of the PP ACA, asked, "This was the law. How can they change the 

law?,,23 

The Treasury Department claims its delay of the employer mandate's requirements is an example 

of the sort of "transition relief' it has provided when implementing past tax legislation24 There 

are a number of difficulties with this rationale. Congress never granted Treasury the power to 

delay such regulatory requirements for an entire year. This is a more sweeping use of that power 

than previous uses. The employer mandate is an essential component of a broader regulatory 

scheme2 ; Finally, there is no limiting principle to the Treasury's claim to power. If the president 

can delay the employer mandate for one year, can he delay it for 1 0 years~ 

The president has also unilaterally rewritten the PPACA's health insurance regulations and in the 

process failed to execute faithfully the Administrative Procedures Act. 

1n recent months, millions of Americans have received letters from their health-insurance 

carriers informing them that their health plans were being cancelled because they did not satisfy 

the requirements of the PPACA. Amid heavy criticism that he had violated is oft-repeated pledge 

that "if you like your health plan, you can keep it," President Obama offered to suspend 

enforcement of numerous PP ACA requirements in a manner that would allow some Americans 

to re-enroll in health plans that remain illegal under federal law, and in some cases under state 

law26 

The president laid out a procedure through which consumers and insurers could engage in illegal 

activity, and encouraged state officials to facilitate those illegal activities. That procedure 

conflicts not only with the statute but also with the president's own regulations implementing the 

statute. With this new procedure, the president imposed obligations on insurers who want to take 

advantage of this option, yet neither those conditions nor the authority to impose them are found 

anywhere in the statute or the president's regulations. 1n effect, the president sought to reinterpret 

22 Mark J\1aZllL Continuing to Implement the ACA ill a Careful. Thoughtful Manner, Trcasmy Notes (Jui. 2. 2013), 

hin):! ;\'I\'1Y trcasurv. gOY/ cOlmcctibloP,iPagcs/C ontinUtllg-to-Implement -thc-AC A -in-a-Cardb 1-Tlloughtflll-fvImmcr-

~e1l-~· 

L< Jonathan Weisman & Robert Pear, Seeing Opening. Honse G.O.P Pushes Delay on Individual Mandate in Health 

Lnw, N.Y Times, Jul9, 2013, at h!tRjj~~~~Y~JJItiJlJs:~_~:CQJl1/2!)V{Q7!lD[!'J~/poJitl~):;~JW_l19~:-E9P-111l:~lJP~-d~lm~9J1~ 

indiyidua l-mand..:'ltc-in-healt h-im,-. hrml. 

::1 MarkM1LuL "Leiter 10 Rep. Fred Upton, Chairman orus. House Committee on Energy and Commerce", luI. 9. 

201 J, at httl).1!fkJ!19gmTh,-ffiG!],yyQnl:m9.!9~l1Q!l?iQ.g9y:§ij5?.~ill..lllUf!lQ.~illQc.!JillC;u.b"il-IpJQll":J)':'C~ll!..I::..A~~AdtllJ ..::.·Z: 

91'<lr 

Michael F. Cannon, Delaying the Employcr Mandate Requires Delaying All of ObmnaCare, Cato at Libcl1:)' (lUI. 

3,2013. S·50Mi). 11[10"//"" \\ \\ .cato.orgiblof.:/del:lvim·:-emplm'er-mmldate-reguires-del{l"ing-aH-obamacam. 

::6 Gary Cohen, "Letter to State Insurance Commissioners", Nov. 14.2013, at 

http:/h.nnv.ems.goyiCCIIOJResources/LettersIDmnlload sf commissioner -le tter -11-1-t.-20 13 .PDF 

6 
49 

the PPACA's provisions regarding "grandfathered" plans without going through the rulemaking 

process required by the Administrative Procedures Act. 

Declining to Collect Taxes the PPACA Imposes 

By unilaterally suspending the PPACA's employer mandate and minimum-coverage 

requirements, the president has effectively declined to collect the penalties the statute imposes on 

those who fail to comply with these provisions. 

The Obama administration explained that consumers who retain their (still-illegal) health plans 

under the specified procedures "will not be considered to be out of compliance with the market 

reforms," including the minimum-coverage requirements. Importantly, the administration 

clarified that the Treasury Department, which enforces the indi vidual mandate, "concur[ s 1 with 

the transitional relief afforded in this document,,27 

In other words, the president announced he will not enforce the indi vidual mandate against those 

who purchase these still-illegal health plans, even though the PPACA clearly requires him to do 

so. 

Imposing Taxes the PPACA Does Not Authorize 

Even more troubling, President Obama is threatening to impose hundreds of billions of dollars in 

taxes Congress never authorized on millions of employers and individual taxpayers. 

If and when the president begins issuing Exchange subsidies in the 34 states with federally 

established Exchanges, those subsidies will immediately trigger taxes against employers and 

individuals in those states. A back-of-the-envelope estimate is that those illegal subsidies will 

trigger illegal taxes against 8 million individual taxpayers and millions of employers in those 34 

states 28 Since those levies will only cover a fraction of the cost of the subsidies, however, the 

lion's share of the tax burden the president is unilaterally creating will be imposed on future 

generations in the form of hundreds of billions of dollars of additional federal debt. 

As noted above, the total cost of these illegal taxes will reach $700 billion over the first 10 years. 

But since the president claims he can issue these subsidies in allY state that does not establish the 

Exchange, he is actually claiming the authority to tax, borrow, and spend more than $1 trillion 

(in the event that all states refused to establish Exchanges) that the PPACA expressly says he 

cannot. 

Forestalling Democratic Action 

Underlying each ofthese instances in which President Obama has unilaterally rewritten federal 

law is an unmistalcable desire to forestall democratic action by the people's elected 

representatives in Congress. 

" Id. 

" See Adler & CalU10l\ Health Matrix, supra at 192-193. 

7 
50 

If the president had not raided the Prevention and Public Health Fund, then federal Exchanges 

might be even less prepared to offer coverage in 2014 than they are now, which almost certainly 

would have prompted Congress to reopen the PPACA. 

Tfthe president had not allowed members of Congress to remain in their health plans through 

2014, or had not offered to provide them illegal subsidies thereafter, all observers agree Congress 

would have reopened the PPACA to maintain its members' compensation packages, and perhaps 

would have made other changes to the law. 

If the president had not unilaterally waived the PPACA's unworkable employer mandate or 

various health insurance regulations, a revolt by employers and consumers likely would have 

spurred Congress to do so. Ezra Klein, another supporter of the PP ACA, wrote, "This is a 

regulatory end-run of the legislative process. The law says the mandate goes into effect in 2014, 

but the administration has decided to give it until 2015 by simply refusing to enforce the 

penalties',29 In each case, Congress stood poised to enact into law the very changes that the 

president announced. Yet the president threatened to veto the codification of his own policies. A 

reasonable supposition is that he would not want the codification of his policies to complicate his 

ability to rescind them unilaterally at a later date. 

Tfthe president were to enforce the PPACA faithfully, by admitting he has no authority to issue 

Exchange subsidies or to impose the related taxes in states that refuse to establish Exchanges 

themselves, all observers again agree that Congress would have to reopen the statute for maj or 

revisions and possibly repeal. 

At this point, it manifestly clear that President Obama is exercising legislative powers he does 

not possess in order to prevent Congress from exercising the legislative powers that only 

Congress possesses. 

Conclusion 

The concerns I share with you today are not borne of partisanship. Though I have worked for 

Republicans, I am not a Republican, for reasons that Democrats on this committee can readily 

appreciate. I am acutel y aware of the last Republican president's failures to execute the laws 

faithfully. In 2008, though I did not support him, I preferred the Democratic presidential 

candidate to the Republican candidate in part because he promised to curb such abuses by the 

executive. I have praised President Obama for doing more than even many libertarians to 

celebrate the gains in equality and freedom our nation has secured for women, for AfricanAmericans, for gays, and for lesbians30 

29 Ezra Klein, Obamacare' s Employer Mandate Shouldn't be Delaved. IT should be Repealed, Washington Post, Jul. 

2, 201 J, at b~~IUb~\'~'. ",-a_sIlillgto!!£O_~t·~ql!l,:l?JQhs'~'\~Q_n~blogbYJ~aOJ}[O} /Q::?{91~fl-Dlf!~~~·~s_::~m21o):>; (::!!)!l_!l4'!r~:: 

shoulcblt-be-delaved-il-sholtld-he-repenled/. 

31) Mich,1el F. CaIUlOll, Seneca Falls. and SeluL.1 and StonewalL Calo at Liberty (Jan. 24, 2013, 2'29PM), 

http://',~';-w_cato.orglb10g!senecfl-falls-sehna-stone'val1. 

8 
51 

——— 

*See Appendix for supplemental material submitted by this witness. 
52 

Mr. GOODLATTE. Thank you, Mr. Cannon. 

I will begin the questioning under the 5-minute rule. 

Professor Rosenkranz, oftentimes the legislative process is about 

negotiation, about give and take between competing interests and 

compromise. How does the President’s creating, amending, suspending, and ignoring acts of Congress at will affect the legislative 

process? 

Mr. ROSENKRANZ. That is a great question, Mr. Chairman. 

The short-term effect is an aggrandizement of the President, but 

a predictable long-term effect is legislative gridlock. There is every 

reason to believe that Congress will not be able to reach these compromises if they know that these compromises can be unilaterally 

rewritten in the White House. There is every reason to believe that 

Congress will grind to a halt under the threat that President 

Obama will rewrite its handiwork. 

Mr. GOODLATTE. In fact, couldn’t you argue that that is, indeed, 

happening right now, that as you try to work out differences between various perspectives on a piece of legislation, those who may 

be asked to give something that they think the President agrees 

with them on might say, well, why should I give on that because 

I can get that changed or done unilaterally by the executive 

branch, or the party that wants to achieve that says, well, why 

should I agree to it because they are not going to enforce that anyway? 

Mr. ROSENKRANZ. You could imagine such a negotiation about 

the effective date of Obamacare, but after the statute is passed, 

President Obama decides what the effective date is quite regardless 

of what Congress wants. So gridlock is quite a predictable result. 

Mr. GOODLATTE. Professor Turley, the Constitution’s system of 

separated powers is not simply about stopping one branch of Government from usurping another. It is about protecting the liberty 

of Americans from the dangers of concentrated Government power. 

How does the President’s unilateral modification of acts of Congress affect both the balance of power between the political 

branches and the liberty interests of the American people? 

Mr. TURLEY. Thank you, Mr. Chairman. 

The danger is quite severe. The problem with what the President 

is doing is that he is not simply posing a danger to the constitutional system, he is becoming the very danger the Constitution was 

designed to avoid, that is, the concentration of power in any single 

branch. This Newtonian orbit that the three branches exist in is a 

delicate one, but it is designed to prevent this type of concentration. 

There are two trends going on which should be of equal concern 

to all Members of Congress. One is we have had the radical expansion of presidential powers under both President Bush and President Obama. We have what many once called an imperial presidency model of largely unchecked authority. And with that trend, 

we also have the continued rise of this fourth branch. We have 

agencies that are now quite large that issue regulations. The Supreme Court said recently that agencies can actually define their 

own or interpret their own jurisdiction. 

Mr. GOODLATTE. I am going to cut you off there because I have 

got a couple more questions I want to ask and only 2 minutes left. 
53 

But, Mr. Cannon, you have argued that the President is going to 

spend billions of dollars Congress did not authorize to provide premium assistance tax credits and subsidies on federally run health 

care exchanges. Could you please quickly walk me through why the 

President’s plan to provide premium assistance on federally run exchanges is indeed illegal? 

Mr. CANNON. Well, we called those premium assistance tax credits because that is what the statute calls them, but in effect they 

are Government subsidies. They are Government spending. And 

the statute is quite clear. It is clear. It is consistent. It is unambiguous. It was intentional and purposeful when it said that those 

premium assistance tax credits would be available only to people 

who purchase health insurance through an exchange ‘‘established 

by the State under section 1311.’’ That is not just one mention of 

that phrase. The phrase is mentioned several times explicitly and 

through cross references. The statute is very tightly worded, and 

it makes clear that those tax credits are available only if a State 

establishes an exchange itself under section 1311. If the Federal 

Government establishes a Federal fallback exchange, those tax 

credits are not available because that exchange is established by 

the Federal Government under section 1321 as the Obama administration has acknowledged in regulation. 

Mr. GOODLATTE. Thank you. I agree. 

Professor Rosenkranz, some defenders of the President’s unilateral actions have asserted that his actions were merely an exercise 

of prosecutorial discretion. Are these assertions correct or is there 

a fundamental difference between prosecutorial discretion and 

many of the President’s unilateral actions? 

Mr. ROSENKRANZ. So there are many cases that are close cases. 

I agree with Professor Turley. But some of these cases are not 

close. So prosecutorial discretion is one thing, but wholesale suspension of law is quite something else and that is what has happened under Obamacare. 

Likewise in the immigration context, kind of case-by-case prosecutorial discretion is one thing, but a blanket policy that the Immigration Act will not apply to 1.8 million people, that is quite 

something different. This is a scale of decision-making that is not 

within the traditional conception of prosecutorial discretion. 

Mr. GOODLATTE. In fact, the President has taken it a step further 

and has actually given legal documents to the people in that circumstance, well beyond simply deciding to leave them there and 

not prosecute them but to actually enable their violation of the law 

by giving them documents to help them evade the problems that 

ensue from living in a country that they are not lawfully present. 

Mr. ROSENKRANZ. Quite right. 

[Disturbance in the hearing room.] 

Mr. GOODLATTE. Presently we do not have order in the hearing 

room. Members of the audience must behave in an orderly fashion 

or else they will be removed from the hearing room. Rule 11 of the 

House rules provides that the Chairman of the Committee may 

punish breaches of order and decorum by censure—— 

Mr. GOHMERT. Mr. Speaker, could we get security to help? 
54 

Mr. GOODLATTE [continuing]. And exclusion from the hearing. 

The Capitol Police will remove the disruptive members from the 

audience immediately. 

Ms. JACKSON LEE. Would the Chairman yield? Are you allowing 

some to be able to sit down and therefore comply rather than removing them from the hearing room? 

Mr. GOODLATTE. I have conferred with the Ranking Member and 

since we afforded them that opportunity earlier in the hearing, now 

they are going to be required to leave. 

Ms. JACKSON LEE. Well, my passion is with those who are leaving. Thank you for being here, and I hope that we will come to an 

understanding—— 

Mr. GOODLATTE. The gentlewoman is out of order. 

My time has expired, and the Chair now recognizes the Ranking 

Member, Mr. Conyers, for his questions. 

Mr. CONYERS. Thank you. 

I am interested in the presentation of Professor Lazarus who was 

explaining some of his differences with the witness to his left, and 

I would like to ask if he could pick up that line of discussion. We 

are pleased that you are here because there has been so much excitement or excited rhetoric about where the President and his Administration are going. I have never heard this level of 

hypothesizing as to where this is all going to take us. And I think 

it is considerably over the top. I am so glad you are here today, and 

I would ask you to respond, please. 

Mr. LAZARUS. Thank you very much, Mr. Conyers. 

The theory that the Affordable Care Act actually intended to cut 

off the very benefits that the law was passed to create to the very 

core constituency of needy people that was the target of the law 

that my friend, Mr. Cannon, came up with is something that no 

one on either side of the aisle had any idea about when the law 

was passed. He and some other clever colleagues came up with this 

theory at least 9 months, I think, after the law was passed, and 

they are very happy that they did so. They have gloated that their 

theory, if adopted by the courts, would drive a stake through the 

heart of Obamacare. That is their words, that it would sink the 

ACA and threaten its survival. 

In fact, however, the law’s text does not sabotage the universally 

acknowledged purpose of ensuring access to health insurance for all 

the millions of Americans who cannot now afford it. To make their 

implausible case to the contrary, Mr. Cannon and his colleagues 

snatch a few isolated words out of context and ignore the rest of 

this huge statute. But if you look at the entire statute, you quickly 

have to conclude that the whole text, not just these isolated 

phrases, harmonize the purpose of the statute with its text, meaning that all Americans who are eligible for the benefits to enable 

them to afford insurance will be able to have them whether or not 

they reside in Federal exchange States or State exchange States. 

I might add just one quick thing, and that is, so Mr. Cannon and 

his friends soon realized that their reading of the text did not make 

sense and hang together. So they came up with an even more headscratching claim, and that is that the sponsors of the law ‘‘intentionally and purposefully designed it to achieve this self-immolation.’’ And Mr. Cannon just referred to that argument. 
55 

So what this means, it means that the ACA sponsors actually intended not only to stiff the very people that they wanted to benefit. 

It actually means that they intentionally handed over to Mr. Cannon’s allies in State capitals the stake that he talks about and invited them, if they chose to do so, to drive it through the heart of 

the ACA. I mean, we have to imagine really—in order for your theory to make sense, one has to imagine Senator Baucus, Senator 

Murray, Senator Reed, that well-known soft touch, Senator Schumer getting together in a room off the Senate floor and saying I 

know what we are going to do. We are going to enable all the Republican Governors and State legislators just to decide that the 

ACA will not work in their States. Unsurprisingly, there is not a 

single piece of evidence in the legislative record to support this notion, and what is really going on, I am afraid is that having lost 

politically, having lost in the Supreme Court, the ACA opponents 

who are clinging to this theory are hoping that the courts will bail 

them out once again. That is an awfully big political lift. I do not 

think that the courts are going to do that. 

Mr. CONYERS. Thank you so much. 

Mr. Chairman, I would ask unanimous consent to put in the 

record this report by the ‘‘New Republic’’ of November of this year 

entitled ‘‘Obamacare’s Single Most Relentless Antagonist,’’ who is 

our distinguished witness here today. 

Mr. ISSA. Reserving. Can I just ask one quick question, Mr. 

Chairman? Is the ‘‘New Republic’’ doing reports or articles? 

Mr. CONYERS. Reports or articles? I cannot tell you. You mean 

on the one that I am introducing? 

Mr. ISSA. Yes, Mr. Ranking Member. I only ask because I am fine 

to have newspapers and op-eds and so on put in the record. I just 

want to have them characterized not as a report as though they 

have some substantive, factual backing. 

Mr. CONYERS. Well, I have never been asked this question before. 

Mr. ISSA. Only because I am often called the President’s antagonist, and I am not sure that a report that left me out would be justified as factual. [Laughter.] 

Mr. GOODLATTE. Without objection, the ‘‘New Republic’’ article 

entitled ‘‘Obamacare’s Single Most Relentless Antagonist’’—and I 

am sure both the author of the theory with regard to the Federal 

use of those funds and the gentleman from California would both 

be proud to have the article in the record, and therefore we will, 

without objection, make it a part of the record. 

[The information referred to follows:] 
56 

NE REP 

Obamacare's Single Most Relentless Antagonist 

by Alec MacGiIIis I November 12, 2013 

Irs been widely noted that one of the biggest challenges for the Obarna administration in setting up the new federal 

exchange for health insurance was that the project was much bigger than anticipated. Why? Because f?~· J?_,:y~!}tat~Hhlll! 

~_:<QE'st~cid_e.~i~S~5:LLO_~~UlP_ th('i!:Jl~~n __ ~~c:_h<!1]J£e.~36 of them left the task to the federal government. This meant the feds 

}:\teTe Jeft having to pull a huge web of databases, regulations and insurance offerings into healthcare.gov, and that the site 

was also hit with a greater rate of traffic than it would have been if more customers had gone to exchanges set up by their 

own states. Meanwhile, some of the states that did set up exchanges (though 110l all) have been faring far bet1er 

Why did this happen? Why did so many states that fiercely guard their prerogative to handle their own affairs cede control 

of their health insurance markets to Washington? 

Well, a disproportionate share of the credit or blame-depending on how you're looking at it-goes to a person you've 

probably never heard of: Michael (annol! 

Cannon is a health care policy expert at the libertarian Cato Institute. He is engaging and sharp-witted. He is also an avowed 

opponent of the Affordable Care Act, and has for several years now been embarked on a legal crusade that, while a ways 

from triumphing, may have inadvertently played an outsized role in suppressing the number of states setting up their own 

exchanges, thereby greatly confounding the law's implementation 

Cannon's crusade, which has been joined by Case Western Reserve University law professor Jonathan Adler, is driven by the 

conviction that there is a £l.s'bilitating hole in the law: as written, they argue, it provides subsidies to help people buy 

individual health insurance plans only in exchanges set up by the states, not by the federal government. Cannon maintains 

that this was deliberate, as an incentive to get the states to set up exchanges, and that the federal government is violating the 

law by offering subsidies on the federal exchange. Defenders of the law say this is ho!:,rwash, that the wording flaw he has 

identified is a semantic oversight, and that it was plainly understood at every step of the law's drafting-to Democrats, 

Republicans, and budget analysts tallying the law's costs-that the subsidies would be available on the federal exchange 

After all, the exchange would collapse without subsidies to help lower and middle-income people afford coverage. For more, 

see my colleague Jonathan Cohn's @.D1JD<!0~ a year ago 

Cannon's argument has made its way into several lawsuits against the Affordable Care Act, two of which recently 

sunnounted then- fir'it hurdle in the courts. But his crusade may have done damage regardless of whether those long-shot 

lawsuits prevaiL To build the legal case, Cannon spent a lot oftime traveling around the country during the past few 

years-with visits to more than a dozen states and calls to far more-explaining to state officials opposed to the law that, if 

they simply refused to set up exchanges of their own and thereby shunted their citizens onto the federal exchange, they 

would greatly raise the odds of the law's total collapse if and when the courts agreed mth him that the federal exchange 

couldn't award subsidies 

Cannon was hardly the only activist making the rounds urging states against cooperating with the law-the American 

Legislative Exchange Council and Koch Brothers-backed Americans for Prosperity were doing so as well. But Cannon's 

argument undoubtedly helped some states overcome their natural states' rights inclination to handle their business on their 

own. As he put it in May 2012 in an online symposium organized by Tea Party-affiliated FreedomWorks, "The biggest 

challenge in convincing states not to create Exchanges is this. Lots of state officials, including conservative ones, have been 

sold on the idea that -if we don't create an Exchange, the feds willlMPOSE one on us.'" Among those whom he helped to 

lof2 
57 

dissuade were New Hampshire and Maine, where Politico reported in Apri 120 12 that Cannon's ar,b'llment was having an 

impact: 

A few weeks later, in!\1ay 2012, Cannon cel~bratcLl wILen Chri<; Christie reiected an exchamr.c for Ne\v .iersIT, despite 

having accepted another part of the law, the expansion of Medicaid. "He has used the most powerful tool available to states 

to block Obamacare, and so he has done the best thing for the state's residents," Cannon said. (Christie on Sunday cited the 

troubles of the federal exchange as vindicating his decision to send the state's residents into that troubled program rather 

than setting up a state exchange for them. This logic went !:!pclmllel2£:cd bv 1ll1..lli.lestioner George SteJ2l:illDQP..QJJ}Q§.,) 

Tim Jost, a Washington and Lee University professor and one of the leading authorities on the law's implementation, warned 

against overstating Cannon's role in limiting the number of state exchanges. The biggest factor in states' deciding to leave 

the task to the federal government, he said, was the 2010 midterm election, which elected Republican majorities in many 

state capitols and was taken to af1irm a general rejectionist attitude toward the law. It was doubtful, Jost said, that states 

were persuaded to send their citizens into the federal exchange specifically to deny them the opportunity to receive 

insurance subsidies, under Cannon's reasoning. "1 don't know you'll tind any indication that states were saying, 'this is a 

way of screwing citizens out of tax relie( '" Jost said 

Cannon himselfis not one to toot his own horn for his role in limiting the state exchanges. "When I was going to the states 1 

got the sense that there were a lot of state officials who knew they wanted to stop this law and didn't lmow how," he said 

"When people like me would go to the states and say they were better off not creating the exchanges, it gave them the 

information they needed and they didn't." Still, he made clear that he was often the only person on the barricades against the 

insurance companies, who wanted state-based exchanges because, Cannon said, they'd exert more influence over them than 

the federal one. "It was very lonely out there," he said. In some states, "I'd be only person testifying against it." 

While his focus is still on the lawsuits, Cannon resists open celebration over the early woes of health care. go v, though some 

schadenfreude slips through. "I don't take any satisfaction in any of this," he said. "It was wise for many states not to set up 

their own exchanges, because now it's clear who's responsible for the problem: the federal government ... States that refused 

to create exchanges should be patting themselves on the back for making the right move and keeping the lines of 

accountability dear." 

But Cannon bristles at the notion that what he or anyone else did to argue against the state exchanges or otherwise 

encourage states to resist the law amounts to ~abotaQ[;" that reduced the [aw's (,hances fe, ~uccess. As he twe~:!~ Tuesday 

morning: "Claims of It-Oban:mC<l!'.!: 'sabotage' imply that to work, the {0.CA. requires a level of public support it does not 

have. What's left to discuss?" 

Left unsaid, of course, is the chicken and egg aspect to this defense. No, the law does not have much public support. But its 

early stumbles are gQf Jlclpil(gi:vJhiltX~~Ht and to the extent that the efforts to undermine a law that was duly passed by 

one branch of government, signed by a second, and upheld by a third have contributed to those stumbles, they have most 

certainly also fed the disenchantment. Regardless of how the lawsuits turn out, Cannon's mission may already be 

accomplished. 

Sou/'ce L1?L: Imp: '~I ~I \j.fl("l republic. com artlde 115576 obamacafl?<;-web-slte-erchange-woes-trace-cato<;-tlllchael-cannon 

2of2 
58 

Mr. CONYERS. And I am sorry to disappoint my friend. Your 

name is not even mentioned in this article. 

Mr. ISSA. It is an oversight. 

Mr. CONYERS. Thank you, Mr. Chairman. 

Mr. GOODLATTE. The Chair recognizes the gentleman from Texas, 

Mr. Smith, for 5 minutes. 

Mr. SMITH OF TEXAS. Thank you, Mr. Chairman. 

Mr. Chairman, in my judgment, the President has ignored laws, 

failed to enforce laws, undermined laws, and changed laws, all contrary to the Constitution. It seems to me that the President is trying to make laws by executive decree at news conferences. 

But in a 2012 interview, the President said that he could not 

‘‘wave away the laws that Congress put in place,’’ and that ‘‘the 

President does not have the authority to simply ignore Congress 

and say we are not going to enforce the laws that you passed.’’ Yet, 

it seems to me that is exactly what he has done. 

I would like to address my first question to Professor Turley, 

Professor Rosenkranz, and Director Cannon. I think I know their 

answer, but the question is, do you think in fact the President has 

acted contrary to the Constitution? 

Professor Turley, you mentioned that you supported the President’s policies and even voted for him. Yet, you say he has crossed 

the constitutional line. The legislative process is not an option, and 

what the President has done is dangerous. So I assume your answer is, yes, the President has acted contrary to the Constitution. 

Is that right? 

Mr. TURLEY. It is. And I would also just add, Congressman, that 

this was an issue that the Framers considered. You know, 150 

years before they drafted this provision, which did not change 

much in the Committee, this was a fight with James I. The Framers were very familiar with it, and I think that is what gave life 

to this very clause. 

Mr. SMITH OF TEXAS. Thank you. 

And, Professor Rosenkranz, do you think the President has acted 

contrary to the Constitution? 

Mr. ROSENKRANZ. Representative, I would say that some of these 

cases are close cases but some are not. So the wholesale suspension 

of law, for example, is I would say the paradigm case of a Take 

Care Clause violation, yes. 

Mr. SMITH OF TEXAS. Okay, thank you. 

And Director Cannon? 

Mr. CANNON. Yes. 

Mr. SMITH OF TEXAS. That was quick and easy. Thank you. 

My next question is a little bit tougher, and that is what can 

Congress or the American people do about it. How can we restrain 

the President from acting in a way contrary to the Constitution? 

Professor Turley? 

Mr. TURLEY. That is, I think, the most difficult question that we 

face. I have had the honor of representing Members of both parties 

of Congress and going to the courts. And the courts are quite hostile toward a Member’s standing, for example, when they believe a 

violation of the Constitution has occurred. It is in fact Member 

standing that would solve many of our problems; that is, if Mem-
59 

bers could go to the courts and raise violations of the constitution, 

it would make much of these difficulties go away. 

You will note that the Administration has made reference to the 

fact—and I think they have some support for this—that they doubt 

people would have standing to challenge many of these acts. So we 

have something that the Framers would never have accepted, that 

you can have violations of the Constitution and literally no one can 

raise the issue successfully with the courts for review. 

Mr. SMITH OF TEXAS. Professor Rosenkranz? 

Mr. ROSENKRANZ. I am actually not sure I agree with Professor 

Turley on the standing question. It is quite true that some of these 

violations may not be amenable to judicial review. Ultimately, 

though, the check on this sort of constitutional violation is elections. So this is exactly the sort of hearing we ought to be having, 

exactly the sort of hearing that the electorate ought to be paying 

attention to for our next round of elections. 

Mr. SMITH OF TEXAS. Okay, thank you. 

And Director Cannon. 

Mr. CANNON. I think there is little that Congress can do if it is 

divided over the President’s abuse of his authority, but fortunately—and as far as judicial remedies go, it is very difficult to 

challenge an action of the President when he relaxes an obligation 

on a certain party. It is much easier to find a plaintiff who has 

standing to challenge an action that imposes new obligations that 

the legislature never approved. 

That is what has happened in the case of the President issuing 

premium assistance tax credits through Federal exchanges because 

those tax credits will trigger taxes, penalties, on employers and individuals in those 34 States that have refused to establish an exchange. And a number of those employers and individuals, including two State attorneys general, 15 Indiana school districts, and a 

dozen or more private employers and private citizens have filed 

suit, four different lawsuits. In fact, one of them will have oral arguments this afternoon here in Washington, D.C. So there is a judicial remedy for some of these abuses. 

Mr. SMITH OF TEXAS. Okay, good. Thank you, Director Cannon. 

Thank you, Mr. Chairman. I yield back. 

Mr. GOODLATTE. The Chair now recognizes the gentleman from 

New York, Mr. Nadler, for 5 minutes. 

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. Lazarus, Professor Rosenkranz has written in a Wall Street 

Journal op-ed piece that Abraham Lincoln would not approve of the 

delay in the employer mandate and contrasts this decision with 

Lincoln’s decision on habeas corpus. Could you comment on the 

claim that Lincoln would disapprove, and what about the contrast 

with the suspension of habeas corpus by Lincoln? 

Mr. LAZARUS. Yes, I read that article with some amusement, I 

have to say, Professor Rosenkranz. I think that President Lincoln 

would chuckle somewhat contemptuously at the notion that there 

is an equation between suspending the writ of habeas corpus, perhaps the most fundamental guarantee of freedom in our whole system, with a temporary delay in the implementation of a provision 

that is part of a very complex, new law, which is something that 

happens under all Administrations, has to happen sometimes for 
60 

practical reasons. Why we are making a big fuss about this as a 

constitutional matter—well, it is not beyond me. I understand why 

it is being done. If it sounds like politics, that is what it is. But 

to make that kind of a comparison, Professor Rosenkranz, does not 

do justice, I think, to your position at Georgetown. 

Mr. ROSENKRANZ. May I—— 

Mr. NADLER. Thank you. No, no. I have too little time for too 

many questions. 

Let me start by saying that I generally in many respects agree 

with Professor Turley about the growth of the imperial presidency 

over the last half century or more. I am particularly concerned 

about the abuse of the war powers by many Presidents, the use of 

the state secrets doctrine to prevent enforcement of constitutional 

rights, the dragnet surveillance that we have seen under Bush and 

Obama beyond the contemplation of the Patriot Act, warrantless 

surveillance in the Bush administration, and things like that. 

I must say that everything we are talking about today is laughable in my opinion in the context of these problems. I am particularly struck by the overwhelming hypocrisy of the claim that the 

President, in interpreting the law, in refusing to interpret the law 

in a way that would drive a stake through the law, is not enforcing 

the law. In demanding that he enforce the law on the dates in a 

way that the person making that demand says we destroy the law 

is not taking care that the laws be faithfully executed. I would say 

it is the other way around, that it is the duty of the President to 

interpret the law within the boundaries that he has in a way that 

makes practical the implementation of the law to effectuate the 

will of Congress. And the fact that people who want to sabotage the 

law and want the law not to work and make no bones about it say, 

hey, he is not obeying this particular sentence in order to make the 

law work—talk about hypocrisy. 

Let me ask a question, having made my statement. I want to ask 

Mr. Lazarus the following question. The District of Columbia Circuit recently in a decision by Judge Kavanaugh recently wrote the 

following. ‘‘The executive’s broad prosecutorial discretion and pardon powers illustrate a key point of the Constitution’s separation 

of powers. One of the greatest unilateral powers a President possesses under the Constitution, at least in the domestic sphere, is 

the power to protect individual liberty by essentially under-enforcing federal statutes regulating private behavior—more precisely, 

the power either not to seek charges against violators of a federal 

law or to pardon violators of a federal law.’’ 

Now, this would seem to support broad discretion in the executive branch to set enforcement and therefore nonenforcement priorities of drug, immigration, and other laws. Does it not? And how 

does that relate to the alleged violation of the Constitution by the 

President in setting immigration enforcement priorities as was outlined earlier? 

Mr. LAZARUS. Well, thank you very much, Congressman Nadler. 

And of course, what Judge Kavanaugh, who is one of the most respected and most conservative judges on the Federal bench—what 

he said here is absolutely correct. And the principles that he is 

enunciating are precisely why a court, if faced with the issue, 

would undoubtedly uphold as perfectly compatible with the Presi-
61 

dent’s discretion in the immigration area, in particular the DACA 

program that my co-panelists here are claiming is a gross violation 

of his duty to see that the laws are faithfully executed. 

I would like to, if I can, just quote one other authority, and that 

is the Supreme Court in an important decision about a year and 

a half ago, a 5 to 3 majority, including Justice Kennedy who wrote 

the opinion and Chief Justice Roberts opined that, quote, a principal feature of the removal system in the immigration area is the 

broad discretion exercised by immigration officials. Federal officials, he said, as an initial matter must decide whether it makes 

sense to pursue removal at all. And they went on to say that discretion in the enforcement of immigration law embraces immediate 

human concerns. Unauthorized workers trying to support their 

families, for example, likely pose less danger than alien smugglers 

or aliens who commit a serious crime. And that very recent broadbased decision, like Judge Kavanaugh’s remarks, is completely at 

odds with the critics’ cramped interpretation of the President’s immigration enforcement and his constitutional authority. 

Mr. NADLER. Well, I wanted to ask Mr. Rosenkranz if he agreed 

with Judge Kavanaugh and the Supreme Court. I will ask unanimous consent for an additional minute so Mr. Rosenkranz can answer that, Mr. Chairman. 

Mr. GOODLATTE. Without objection, the gentleman will have an 

additional 1 minute. Mr. Rosenkranz? 

Mr. ROSENKRANZ. I am glad you asked because Judge 

Kavanaugh also said quite recently in 2013, quote, 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. I 

think Judge Kavanaugh is exactly right. 

Mr. NADLER. Of course, that is not the question. The question 

was delay here. Thank you. 

Mr. GOODLATTE. The Chair recognizes the gentleman from Ohio, 

Mr. Chabot, for 5 minutes. 

Mr. CHABOT. Thank you, Mr. Chairman. 

Mr. Rosenkranz and Mr. Cannon, Mr. Lazarus had commented 

upon previous writings of yours, but you were not afforded the opportunity to respond. Did you want to take a moment to do that? 

I will go with you first, Mr. Rosenkranz. 

Mr. ROSENKRANZ. Thank you so much.0 

So there was a comment about an op-ed that I wrote in The Wall 

Street Journal comparing Lincoln’s suspension of habeas with 

President Obama’s suspension of Obamacare. Of course, I agree 

with Mr. Lazarus that these things are not the same. Habeas and 

Obamacare are not the same. But what is striking about the comparison is that President Lincoln welcomed the involvement of Congress, welcomed Congress to ratify what he had done, to pass a 

statute justifying what he had done. He was concerned that perhaps he had overstepped his constitutional authority. He welcomed 

Congress’ ratification of his action. President Obama, by contrast, 

actually threatened to veto a statute that would have ratified his 
62 

action. That I think is the startling contrast that I was trying to 

bring out in that op-ed. 

Mr. CHABOT. Thank you. 

Mr. Cannon? 

Mr. CANNON. Mr. Lazarus and, whenever this issue comes up of 

whether premium assistance tax credits are authorized in the 34 

States and Federal exchanges, supporters of the Administration, of 

the IRS’s decision to offer them in States with Federal exchanges 

talk a lot about what Congress must have been thinking or could 

possibly have been thinking or would they have done this. And 

there is a reason they do that. It is because the statute is clear and 

it contradicts what the Obama administration is trying to do. 

And unfortunately for the Administration, the legislative history 

also is completely consistent with the clear language of the statute. 

Despite 2 years of people like me raising this issue that what the 

IRS is trying to do is illegal, they have yet to offer one shred of— 

one statutory provision or one shred of evidence from the legislative history that supports their claim that this statute authorizes 

tax credits through exchanges established by the Federal Government under section 1321 or that it was Congress’ intent for this 

statute to authorize tax credits through those exchanges. 

So there is a lot more to be said about all of this. 

If I may, I would like to respond to something that Mr. Nadler—— 

Mr. CHABOT. No. Let me cut you off at this point. I have only 

got a limited amount of time. 

Mr. Turley, let me ask you this. You had mentioned something 

along the lines of you were concerned that President Obama is becoming the very danger that the separation of powers was meant 

to prevent. And Mr. Lazarus mentioned earlier that—I do not know 

who exactly he is referring to but some are hyperventilating about 

this whole topic. Would you want to comment on both of those 

things, either in relation to each other or not? 

Mr. TURLEY. Sure. Mr. Lazarus may be responding to my labored 

breathing with the flu, but it is not my testimony. 

The reason I think that we have this disconnect in our view of 

this clause is that we obviously read the history differently. I view 

the Constitutional Convention as quite clear. The Framers were 

students of history, particularly James Madison, 150 years before 

they took a pen and wrote out this clause, there was a fight with 

James I about what was called the ‘‘royal prerogative.’’ It is very 

similar to what President Obama is claiming, the right of the king 

to essentially stand above the law to reform the law to the king’s 

views. Now, I am not saying that President Obama is a monarch. 

But that was the issue that gave the impetus to this clause in my 

view. The language of the clause did not change very much. 

Later, people like Benjamin Civiletti dealt with this under a different term, the ‘‘dispensing power’’ of the President. And Civiletti 

wrote a very good paper about when the President could refuse to 

enforce laws, and he basically said that it could only be done where 

there is an intrusion upon executive power—and by the way, that 

is what was involved in the Miers case that we talked about and 

referred to earlier—or if it was clearly unconstitutional. And that 
63 

second issue—he established it had to be very, very clear so the 

President does not exercise dispensing authority. 

So this is how I would respond. We do not have to hyperventilate 

to look at a problem of this kind and say that this is not about who 

the President is today or what he is trying to achieve. What is lacking from the other side is any notion of what the world will look 

like in a tripartite system if the President can literally ignore any 

deadline in a major piece of legislation, exclude whole classes of 

people from enforcement. The question is what is left in that Newtonian orbit that Madison described. And I would suggest what is 

left is a very dangerous and unstable system. 

Mr. CHABOT. Thank you very much. 

My time has expired. I yield back. 

Mr. GOODLATTE. The Chair recognizes the gentleman from Virginia, Mr. Scott, for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Lazarus, first of all, on the ACA, it seems to me absurd that 

the Federal exchanges that are there for all intents and purposes 

to serve as the State exchange or State marketplace—it would be 

absurd to interpret that they are there for all intents and purposes 

except for the purpose of the bill, which is the subsidies. Is that 

right? 

Mr. LAZARUS. It is obviously absurd, Congressman Scott. And 

therefore, to say that the President is violating his duty to see that 

the law is faithfully enforced because he interprets the law in a 

way that is consistent with its purpose and consistent with the 

known objectives of the Congress that enacted it is also, it seems 

to me, quite absurd. 

Mr. SCOTT. Thank you. 

The Congressional Research Service provided several examples 

in prior Administrations where the IRS delayed enforcement despite a congressionally mandated effective date. Can you say a 

word about the President’s power to delay implementations of provisions particularly when compliance is logistically impossible? 

Mr. LAZARUS. Yes. And I think actually despite the sparks that 

are flying around this room about the President’s actions with respect to the Affordable Care Act, really these principles are really 

quite simple. Several people have noted that the President cannot 

refuse to enforce a law for policy reasons. It is obviously correct, 

certainly correct, and it is also obviously not what the President is 

doing. Does the President have policy objections to the Affordable 

Care Act? I do not think so. Phasing in the enforcement of major 

statutes like the Affordable Care Act or the Clean Air Act or other 

laws, certainly laws that the EPA administers miss statutory deadlines very, very frequently because it is simply logistically impossible to prudently implement them in accord with those deadlines. 

This is just a tempest in a teapot. 

Mr. SCOTT. Thank you. 

Mr. LAZARUS. And if I can say one further thing about your first 

question, Congressman Scott. We should understand what the consequences of Mr. Cannon’s interpretation of the ACA would be and 

why it would drive a stake through the heart of the ACA in every 

Federal exchange state. It is not just that it would keep maybe 80 

percent of the people who were expected to enroll for insurance on 
64 

exchanges from being able to afford that insurance. 80 percent. So 

it would really wreck that part of the program. But actually it 

would probably just cause the entire individual insurance market, 

even for people who could afford insurance, to implode because it 

would so screw up the actuarial calculations. So it really would 

drive a stake through the heart of the law in those States. And to 

say that Congress intended—intended—to do that is—I do not 

know. It is just pretty hard to stomach. 

Mr. SCOTT. Thank you. 

In November 1999, 28 bipartisan Members of the House wrote 

the Attorney General a letter and expressed concern that INS was 

pursuing removal in some cases, ‘‘when so many other more serious 

cases existed.’’ 

How do you set priorities? If the President cannot set priorities 

in enforcement when there is obviously not enough money to enforce each and every provision to the letter of the law, how do you 

set priorities if he cannot enforce each and every provision? 

Mr. LAZARUS. The answer is it is the essence of the executive responsibility to do just that. And I might note that I think that 

President Obama has increased the number of deportations, to the 

consternation of some of his own supporters, a very great deal, as 

everyone here I am sure is well aware, and my understanding is 

he has increased it to 400,000 people a year which is nearly four 

times as many as the number was around 2000. The reason for 

that is that is all the funds that Congress has appropriated for 

that. 

Mr. SCOTT. My time is about to expire. I wanted to get in one 

other question. Can you talk about the obligation of the President 

to defend the Defense of Marriage Act when he believes it to be unconstitutional? 

Mr. LAZARUS. Yes. I agree that the President should only very, 

very rarely and with extremely good reason decline to defend a law 

in court, and I have written about that. And I think it is hard to 

fault what the President did in the case of DOMA. He concluded 

with very good reason that there was simply no argument that 

could justify DOMA. He notified the Congress of this decision. He 

continued to enforce it. He invited Congress to intervene in litigation to present that point of view, and ultimately the Supreme 

Court vindicated his judgment. So it seems to me it is very difficult 

to claim everyone on all sides of these debates in both parties 

agrees that the Take Care Clause contemplates that the President 

may decline to enforce a law which he concludes in a responsible 

way is unconstitutional. 

Mr. CHABOT [Presiding]. The gentleman’s time has expired. 

Mr. SCOTT. Mr. Chairman, I ask unanimous consent to introduce 

into the record the letter I referred to. 

Mr. CHABOT. Without objection, so ordered. 

[The information referred to follows:] 
65 

INTERPRETER 1730 

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67 

76lNTERPRETER RELEASES 

Appendix I, continued 
68 

Mr. CHABOT. The gentleman from California, Mr. Issa, is recognized. 

Mr. ISSA. Thank you, Mr. Chairman. 

Mr. Lazarus, I hear you on the President deeply believing in his 

policy, his signature legislation, the Affordable Care Act, but he 

deeply believes, I am sure, in every item that he wants appropriated from Congress. But 2 years later, it expires. Right? And 2 

years later, he cannot just spend money unless he comes back to 

Congress for more money. Is that not true? That is implicit in the 

Constitution. 

Mr. LAZARUS. I apologize, but I do not really understand the 

question, Congressman Issa. 

Mr. ISSA. When the President’s authority has run out, he must 

come back to the Congress for new authority. In the case of the Affordable Care Act, things which were not in the law have gone 

wrong. This act, this 2,400 pages that had to be passed and then 

read, has flaws in it, and these are fatal flaws if not corrected. Isn’t 

that so? Including the absence of an answer to how do you subsidize if in fact a State chooses not to do it. 

Mr. Rosenkranz, if the law does not give the President authority 

and something goes wrong, I am presuming that the Framers always intended that you would come back to the Congress to resolve 

that need for additional authority. It has happened. It was earlier 

mentioned Abraham Lincoln came back to have his suspension of 

habeas—attempt to have it ratified because he knew, even if he did 

it by executive order, he had limited jurisdiction. He wanted to 

have it codified. 

I think a good example would be McArthur’s promise in war. 

They came back with the Rescission Act in order to undo some of 

the promises that were made in war to the Filipino people and so 

on. 

Is there anything in the Affordable Care Act that is different 

than any other time that something that is not in the law occurs 

that is outside the law that you come to Congress and say I need 

authority to do X? Please. 

Mr. ROSENKRANZ. I quite agree, Congressman. It is really quite 

startling that this Congress—this House offered to ratify exactly 

what the President wanted to do, actually passed a bill which 

would have delayed the employer mandate exactly as the President 

wanted, and far from welcoming this, the President actually threatened to veto it. To me that is quite startling. 

Mr. ISSA. I want to go through a couple things I think we can 

all agree on and get to something Mr. Turley said. Would you all 

agree, without further pontificating, that when Andy Jackson 

heard from the U.S. Supreme Court that he had no right to move 

Native Americans out of their homes to Oklahoma and he then did 

it anyway, saying essentially to the Supreme Court you have no 

army, therefore I am doing it, that he was outside his constitutional authority? You would all agree to that. Let the record show 

I had all—— 

Mr. LAZARUS. I certainly would agree to that. 

Mr. ISSA. Okay. I had all shaking heads. 

When Richard Nixon tried to withhold his tapes, which were essentially evidence of his complicity in the Watergate and the cover- 
69 

up and the court ordered those tapes, even after he had fired a 

number of people and so on, you would all agree that the court’s 

action was appropriate that there was a crime, it went to the White 

House, and ultimately led to Richard Nixon resigning? You would 

all agree that it was appropriate, I assume, for the court to intervene in this constitutional dilemma of a President that did not 

want to turn over evidence related to his crime. Would you all 

agree? 

Mr. LAZARUS. I would. 

Mr. ISSA. Good. 

And would you all agree—maybe, maybe not—that when President Bush asserted in the Harriet Miers case—and this was referred to earlier—that when Judge Bates essentially said Congress 

has a need to get people in front of it, whether that person speaks 

or not, ultimately—and this is Mr. Conyers’ case—that in fact the 

court intervened and said, yes, I have a right to decide and you 

must produce witnesses. You would all agree that that was a good 

balance of power decision by Judge Bates. Is that correct in George 

W.’s case? Okay. 

Then on what basis does President Obama say he is above the 

law when in Fast and Furious he asserted that the court had no 

right to even decide whether or not a lawfully delivered subpoena 

should, in fact, be complied with? And in this case, Judge Amy Berman Jackson has ruled that, yes, she has the right to decide it. The 

question for all of you is if we cannot go to the courts as Congress 

with our standing after a contempt vote, if we cannot go and get 

the court to decide the differences between the two branches, then 

in fact as some of my Democratic friends have asserted, the imperial presidency is complete? Isn’t that the most essential item that 

if in fact we do not have standing, if in fact the court does not have 

a right to decide, then executive power is essentially unlimited? 

Mr. Turley, you have written on this. 

Mr. TURLEY. May I answer? 

Mr. ISSA. I would ask for 1 minute for full answering. 

Mr. GOODLATTE [presiding]. Without objection, the gentleman is 

granted 1 additional minute. 

Mr. TURLEY. I certainly agree that that is part of the problem 

here, that we have created a system by which Presidents can assert 

powers that others view as unconstitutional. I think the President 

is asserting clearly unconstitutional power in this case. And then 

the Department of Justice proceeds to try to block any effort of judicial review. This Administration has been very successful largely 

on standing grounds. So there is no ability to challenge these 

things even if they are viewed as flagrantly in violation of the Constitution. 

I will also add with reference to your earlier point one of the 

things that the courts say when those of us who represent Members go to the court and say the President is acting unconstitutionally—we hear this mantra from the judges saying, well, you have 

the power of the purse. But in this case, it is the power of purse 

that is being violated, and we have hundreds of millions of dollars 

that are being essentially shifted in a way that Congress never approved. And so we have in many ways a perfect storm. Even the 

power of the purse that is often cited by the courts really does not 
70 

mean much if the President can just shift funds unilaterally without any type of review. 

Mr. ISSA. Anyone else? 

Mr. LAZARUS. I guess the only thing I would say—and I do not 

claim to be an expert on standing, as I think some of my co-panelists—— 

Mr. ISSA. I am more interested in the standing of the court, 

which was the question. Does the Federal court have the right and 

obligation to make those final decisions on essentially balance of 

power, and if not, aren’t we doomed? 

Mr. LAZARUS. Well, I would just say two quick things. I mean, 

first of all, the courts do not have authority—they have authority 

under the Constitution to hear cases and controversies, and the 

courts do not have constitutional authority to decide matters that 

are not cases or controversies. And that is why we have standing 

rules. 

The second thing I would just say, Congressman—— 

Mr. ISSA. So refusal to comply with a subpoena would not be a 

problem. Therefore, Nixon should never have resigned because his 

tapes never would have been discovered in your example. 

Mr. LAZARUS. I do not think that that follows. 

Mr. ISSA. He did not turn them over without being ordered to. 

Mr. LAZARUS. Yes, he might have. 

Mr. ISSA. Mr. Rosenkranz, final. 

Mr. ROSENKRANZ. I guess I would just say some of the standing 

questions may well be tricky, but again the ultimate check on presidential lawlessness is elections and in extreme cases impeachment, but elections primarily should be the check. 

Mr. ISSA. So when the IRS prevents the word from getting out 

by conservative groups, they in fact thwart the election. Therefore, 

elections are no longer the final answer. Are they? 

Mr. ROSENKRANZ. To the extent that the IRS targeting is an example of discriminatory enforcement, you are quite right. It is actually the most corrosive form of a Take Care Clause violation because it does cast doubt on everything that follows, casts doubt on 

the elections that follow. So you are quite right. 

Mr. ISSA. Thank you, Mr. Chairman. 

Mr. GOODLATTE. The gentleman from Georgia, Mr. Johnson, is 

recognized for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman, for holding this very 

important and significant hearing today. 

This hearing is pure political theater. It is a farce plain and simple. It is a comedy but the audience has seen it so many times now 

that it is no longer funny. In fact, this hearing is an egregious 

waste of this Committee’s time especially when one considers all of 

the legislation that remains unaddressed by the House like immigration reform. The Senate has passed comprehensive immigration 

reform, but the Speaker of the House continues to refuse to bring 

the issue to the House floor. 

Yesterday, as House Members walked down the Capitol steps on 

their way home from an exhausting 1-hour workday, I watched as 

most Members had their heads down. They wanted to avoid eye 

contact with the 50 or so young people standing at the foot of the 

steps in the cold wind. They had their hands clapped together—the 
71 

young people—in prayer. Their prayer was on behalf of those families of immigrants that are being destroyed as a result of this Nation’s failure to pass comprehensive immigration reform. Their 

prayer was a simple one, that Speaker Boehner allow the House to 

vote on comprehensive immigration reform before the end of this 

session of Congress. The spectacle of those kids shivering in prayer 

in the cold last night could not be avoided by the Members of Congress. So most kept their heads down probably in shame as they 

hastily escaped to the safety of their cars. 

I suggest that this Committee hold a hearing on the question of 

why, despite immigration reform being supported by a majority of 

Americans, having been passed by the Senate and the President 

having said that he will sign it if it ever gets to his desk—why is 

it that we cannot bring that measure to the House floor for a vote? 

Mr. Chairman, this do-nothing House has only 7 legislative days 

left before it adjourns for its well-earned year-end holiday. The 

same Republican Party that has voted 46 times to repeal the Affordable Care Act is today ironically complaining that the President 

is not implementing the law quickly enough. But at its essence, 

this hearing sadly is simply a continuation of the majority’s overwhelmingly obsessive and insatiable desire to kill the Affordable 

Care Act which will enable 30 million Americans to have health 

care—32 million Americans. 46 times they have tried and failed to 

kill it. The result of this hearing will not change the fact that 

Obamacare is the law of the land. 

And since today we are hearing testimony on the use of executive 

authority, let’s not forget that the key authority for Congress to 

check the power of the executive is its Article I authority over appropriations. And by the way, this Congress has not yet passed a 

budget. Congress continues to shirk its constitutional duties under 

Article I. funding the Government through short-term resolutions 

is not leadership and the American people deserve better. 

So after holding yet another hearing to obstruct this Administration, perhaps this Committee can also take up the question of Congress’ duties under Article I in a hearing entitled ‘‘The Congress’ 

Constitutional Duty to Appropriate Funds.’’ 

Now, as far as the Affordable Care Act is concerned, the individual mandate is constitutional. It will reduce costs, prohibit discrimination against patients with preexisting conditions, and extend coverage to the uninsured. It will extend coverage to 32 million Americans. The individual mandate is the key to this legislation being successful. It will ensure that millions of Americans will 

not have to worry about being denied health care because of a current medical condition or a fear that their coverage will be capped 

if they get sick. 

To the Members who have served longer than I on this Committee, I invite you to look back to 2003 when a Republican-led 

Congress enacted the law creating the Medicare prescription drug 

program. Most Democrats voted against the bill in 2003. The program was also very unpopular with most Americans, but Democratic Members worked hard when the program was implemented 

in 2006 and 2007 to make sure that their constituents received the 

full benefits of the program. It is unfortunate that the Republicans 

today are not doing the same thing. 
72 

Mr. Lazarus, this is not the first Administration to temporarily 

postpone the application of new legislation. How have prior Republican and Democratic administrations treated the implementation 

of statutes when statutory deadlines become unworkable? 

Mr. GOODLATTE. Without objection, the gentleman will have 1 

additional minute to allow Mr. Lazarus the opportunity to respond. 

Mr. LAZARUS. I will try not to take the whole minute. The answer 

is that prior Administrations have done just what this Administration is doing because they have to. I quoted President Bush’s Secretary of Health and Human Services, Michael Leavitt, in saying 

that the President’s current decision to delay the employer mandate was wise, and he said that and then cited his own experience 

in phasing in Medicare Part D, the prescription drug benefit program. 

The Environmental Protection Agency under all Administrations 

faces statutory deadlines that cannot be met. We all know that. 

The Bush administration was often chastised by environmental 

groups for missing statutory deadlines and the environmental community charged and charged in court, in fact, that the Bush administration was using delays as a cover for simply suspending the law 

as a de facto matter. I do not know what the basis for that was 

or was not. 

Of course, again if a President refuses to enforce a law for policy 

reasons, that is a violation of his ‘‘take care’’ duties, but that is not 

what is going on here. 

Mr. JOHNSON. Thank you. 

I yield back. 

Mr. GOODLATTE. The Chair recognizes the gentleman from Iowa, 

Mr. King, for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. 

I thank the witnesses for your testimony. This has been one of 

the most interesting that I have been seated here more than a decade on this Committee. 

As I listened, I listened to Mr. Lazarus and often your dialogue 

goes to the policy effect of this rather than being tied to the constitutional language or the statutory language, although you have 

referenced both. I am curious as to what you think the limited powers of the President might be given you grant him such latitude to 

amend Obamacare, extend the statutory deadline because it conforms with the broader intent of the law and your reference to the 

intent of Congress that they really intended to allow for the application of taxes and the distribution of refundable tax credits even 

though Mr. Cannon testifies that that is not in the section that applies. 

So from a broader perspective, could you tell me how you think 

the President’s powers are limited? And I would maybe just ask, 

does he have the power to lay and collect taxes? 

Mr. LAZARUS. Well, first of all, I think that the President’s powers are limited by what the statute provides, and I think I have 

said several times I agree entirely that the President cannot simply 

refuse to apply or enforce a law for policy reasons. 

Mr. KING. But can he regulate commerce, for example? 

Mr. LAZARUS. The President is obligated to phase in a new law. 
73 

Mr. KING. I am sorry, Mr. Lazarus. I hear that. But I am trying 

to get to the constitutional limitations that you think the President 

has. 

Let me just bypass the enumerated powers with the exception of 

what would happen—and I am concerned about Mr. Turley’s statement that we get into a pretty dangerous area here if we do not 

have constitutional limitations. What if we just leap to the end of 

this thing? What if the President declared war? What if he assumed that authority? What is the recourse then? What would your 

counsel be to this Congress if we objected to such a thing or even 

if we objected to it on purely constitutional grounds and we 

thought it was a good policy decision and vetoed our resolution to 

declare war? That should get us to the bottom of this discussion. 

Mr. LAZARUS. Well, the President does not have the authority 

under the Constitution to declare war. 

Mr. KING. Correct. 

Mr. LAZARUS. The Congress does. The Congress has not been 

enormously eager to exercise that authority in my lifetime. But 

that is a very complicated subject and it is the subject of—— 

Mr. KING. Thank you, Mr. Lazarus. 

Mr. LAZARUS [continuing]. Interplay between Congress and the 

executive branch. There is a War Powers Act. There are disputes 

about—— 

Mr. KING. Let me then pick it up from there. I am illustrating 

this point that if there is an incremental march down through, is 

the President overreaching his constitutional authority in my opinion and I think the opinion of many people on this Committee in 

this room. He could assume among that any of the enumerated 

powers, and the recourse that Congress would have—all the way 

down to the declaration of war—and the recourse that Congress 

would have would be pass a resolution of disapproval or we could 

shut off the funding through the power of the purse. And the President has already assumed the power of the purse. So the next recourse is go to the courts, and if we find out that the courts do not 

grant standing for Members of Congress, then the next recourse is, 

I think as Mr. Rosenkranz said, the word that we do not like to 

say in this Committee and I am not about to utter here in this particular hearing. 

The balance I want to come to is ask Mr. Cannon this question. 

The frustration of this balance of power is because of the disrespect 

for the various branches, the competing branches, of Government 

that come. And I will argue that the Founding Fathers envisioned 

that each branch of Government would jealously protect its constitutional power and authority, and that static balance that would 

be there would be the definition of a brighter line between the 

three articles of the Constitution. 

But what then finally resolves this? I know we said elections. If 

the elections are affected by decisions of the executive branch, what 

do the people do who are the final arbiters of this definition of the 

Constitution if they are even frustrated by the election? 

Mr. LAZARUS. Is this to me or—— 

Mr. KING. I am asking Mr. Cannon, please. 
74 

Mr. CANNON. I think it was to me. And you are asking if there 

is no judicial remedy and there is no electoral remedy, what do the 

people do? To what particular sort of abuses are you—— 

Mr. KING. Any one of the list of the enumerated powers, for example, ending with the declaration of war because that is the 

starkest of all. 

Mr. CANNON. There is a procedure in the Constitution that allows the people to amend the Constitution without going through 

Congress. That is another method where the people can try to restrain the executive. 

Mr. KING. May I suggest then if that should happen, why would 

an executive with such disrespect for the Constitution today honor 

an amended Constitution from a constitutional convention? 

Mr. CANNON. That is an excellent question. 

Mr. KING. I would like to turn to Mr. Turley and ask him if he 

has had a chance to reflect upon that earlier statement of the situation that we are in and where this goes. We need to look into this 

future. I would ask unanimous consent for that additional minute. 

I ask each of the witnesses to tell us what does America look like 

in the next 25 years if we have executive upon executive that 

builds upon this continual stretching or disregard of the constitutional restraints and the disrespect for Article I. I would start with 

Mr. Turley. 

Mr. GOWDY [presiding]. You may answer the question as quickly 

as you can. 

Mr. TURLEY. I really have great trepidation over where we are 

heading because we are creating a new system here, something 

that is not what was designed. We have this rising fourth branch 

in a system that is tripartite. The center of gravity is shifting, and 

that makes it unstable. And within that system, you have the rise 

of an uber-presidency. There could be no greater danger for individual liberty. And I really think that the Framers would be horrified by that shift because everything they have dedicated themselves to was creating this orbital balance, and we have lost it. 

Mr. ROSENKRANZ. As I have said before, I think the ultimate 

check is elections. But I do not think you should be hesitant to 

speak the word in this room. A check on executive lawlessness is 

impeachment, and if you find that the President is willfully and repeatedly violating the Constitution, if on your hypothetical he were 

to declare war, I would think that would be a clear case for impeachment. 

Mr. LAZARUS. Well, I guess this is the first time I have heard 

anyone complain about the possibility that this President is going 

to unilaterally declare war and be over-aggressive about that. I do 

not really think that is much of a description of his foreign policy. 

But the Congress has lots of power if it chooses to use it. The 

power of the purse is an enormous power. And I think that if I 

were you, I would find ways to influence policy using the Congress’ 

powers, which you are not doing. I mean, for example, we are hearing complaints about the President’s actions to not enforce deportation against certain classes of immigrants. You know, instead of 

complaining about that, this Committee could hold a markup and 

report out a comprehensive immigration reform bill, send it to the 

floor. 
75 

Mr. GOWDY. Mr. Lazarus, you are—not you but the questioner is 

2 and a half minutes over. So if you can dispense with giving us 

advice on what our legislative agenda should look like and answer 

the question, I would be grateful to you. 

Mr. LAZARUS. Well, but that is an answer. I think the Congress 

has a lot of power and it can use it. 

Mr. GOWDY. Okay. And I assume that the failure to exercise is 

also an exercise of power, the failure to act. 

Mr. Cannon, would you like to briefly answer? 

Mr. CANNON. Maybe Mr. Lazarus knows better than I do how 

many bombs the President has to drop without congressional authorization before that becomes war. I do not know the actual number. 

But I think what Mr. King was getting at is there is one last 

thing to which the people can resort if the Government does not respect the restraints that the Constitution places on the Government. Abraham Lincoln talked about our right to alter our Government or our revolutionary right to overthrow it, and that is certainly something that no one wants to contemplate. 

But as I mentioned in my written and my delivered testimony, 

if the people come to believe that the Government is no longer constrained by the laws, then they will conclude that neither are they. 

That is why this is a very, very dangerous sort of thing for the 

President to do, to wantonly ignore the laws, to try to impose obligations on people that the legislature did not approve. 

Mr. KING. An excellent conclusion. 

Thank you, Mr. Chairman. I yield back. 

Mr. GOWDY. The Chair would now recognize the gentleman from 

Pennsylvania, former United States Attorney, Mr. Marino. 

Mr. MARINO. Thank you, Chairman. 

Professor Lazarus, you made a statement about—at least I inferred, about this being political. I want to assure you that I left 

a lucrative law practice to come to Congress in 2011 because I continually see the eroding of the Constitution. I am a constitutionalist. It is what protects us. So I am not here for the pomp and 

circumstance, for the notoriety or to promote my career. I am here 

because I am concerned about the future of my children and the 

Constitution. So I want to make that perfectly clear. 

Number two, you made a comment, and again I inferred that the 

intent was not an issue or was an issue in part of the Affordable 

Care Act. And I do not want to get into the details of that, but I 

find that interesting that you made intent the issue when the 

Speaker of the House at that time, Nancy Pelosi, said we have to 

pass it before we know what is in it. Okay? So let’s get real about 

this. 

Now we are finding what is in it or what is not in it, and I am 

hearing consistently from my constituents, small businesses, how 

this is destroying them. Let me be the first to say that I think everyone needs health care, and those that cannot afford it—we that 

can afford it have to help those individuals. I firmly and truly believe that. 

So with that, I would like to read you something. I am not a constitutional expert, but I loved constitutional law. I follow constitu-
76 

tional law ad nauseam. Just ask my wife. I am always talking 

about constitutional law. 

But in Federalist No. 51, it said, what is government itself but 

the greatest of all reflections on human nature? And it referred 

to—but the great security against a gradual concentration of the 

several powers in the same department consists in giving to those 

who administer each department the necessary constitutional 

means and personal motives to resist encroachment of the others. 

And the Government was set up to specifically prevent that. 

And the problem is I am seeing here not only in this Administration but in the previous Administration and several Administrations the executive branch is taking for granted that they have exclusive power over issues that they do not. And I am concerned 

about that and what do we do to prevent that. But where does it 

stop? 

Here is my question. We have seen the President and past Presidents concerning the Wars Powers Act, which I think violated the 

Constitution. But this Administration stopped enforcement of detaining illegal immigrants, stopped enforcement of drug laws. I 

know that because I am a prosecutor. I saw it. Stopped enforcement of mandatory sentencings, stopped parts of Obamacare, the 

Benghazi issue, the AG being held in contempt, the IRS issue. How 

many more things do you think have to occur? 

And I am thinking like a prosecutor. One of those in and of itself 

is not enough evidence. Two of those in and of itself is not enough 

evidence. But the violations that I see here that I just listed—and 

there are many more—I think is enough evidence to start asking 

questions. Where do you see the line drawn in what I have recited 

here as enough evidence to start asking questions about Presidents 

exceeding their power? 

Mr. LAZARUS. Well, first of all, Congressman, I cannot address all 

of the—— 

Mr. MARINO. And I do not expect you to. 

Mr. LAZARUS [continuing]. Things that you have raised. But 

many of those things—I mean, let’s be honest about it—are honest 

disagreements about policy or about how to interpret the law. 

Mr. MARINO. So your interpretation of the law—you are saying 

you do not agree with the way perhaps I am interpreting the law. 

So you say I am wrong. 

Mr. LAZARUS. No. Just to finish the sentence, raising the specter 

of some kind of grotesque presidential assertion of unwarranted authority here is just not based on fact. Mr. Cannon, for example, 

strongly believes that his interpretation of the law, which would 

sink Obamacare in his view, is correct, or I guess he does. The 

President disagrees with that. The President has very good reason 

to disagree with that. So to say that he is not taking care that 

the—— 

Mr. MARINO. Let me reclaim my time here. 

But when laws are enacted, they should be followed to the letter, 

and it is not being done here. I have heard you raise the issue of, 

well, prior Administrations have done it. To me that is no excuse 

not to pursue this from a congressional standpoint because whether 

it is Obamacare, whether it is the War Powers Act, whether it is 
77 

going into Iraq, these are all issues that I am deeply concerned 

about. 

So you criticized and you have made some, I think, remarks. I 

do not think you take some of this seriously of what your colleagues have to say up there. So give me an answer as to what you 

think we need to do to curtail the executive power the way I think 

it has been abused over the years. 

Mr. GOWDY. You may answer the question quickly. 

Mr. LAZARUS. Well, I think you can pass legislation to overturn 

an executive action you disapprove of. You can withhold funds for 

it. 

Mr. MARINO. Well, let me ask you—show something right there 

that you are not reciting either. 94 percent of Obamacare is mandatory spending, and the Democrats passed that unanimously without any votes from the Republicans. So it is mandatory spending. 

Nothing can be done about that at this point. It is the law. 

And I yield back my time. Thank you. 

Mr. GOWDY. I thank the gentleman from Pennsylvania. 

The Chair will now recognize the gentleman from New York, my 

friend, Mr. Jeffries. 

Mr. JEFFRIES. I thank the distinguished Chair, as well as the distinguished Ranking Member for his leadership, and the panelists 

for their participation this morning. 

If I could just start with Professor Rosenkranz. And I want to explore this issue of prosecutorial executive branch discretion particularly in the context of the enforcement of our Nation’s immigration 

laws. But if I can just start with some foundational questions. 

The Department of Justice, for example, is an executive branch 

agency. Correct? 

Mr. ROSENKRANZ. Yes. 

Mr. JEFFRIES. And Federal prosecutors within the Department of 

Justice are exercising executive branch action in the context of 

their participation in the criminal justice system. Correct? 

Mr. ROSENKRANZ. Are exercising executive authority, yes. 

Mr. JEFFRIES. Executive authority. 

Now, when prosecutors make a decision, after initially charging 

someone with a serious offense and then agree to a plea bargain 

to a lesser included offense, short of what they may have concluded 

the evidence provides that particular defendant was guilty of, is 

that an appropriate exercise of prosecutorial discretion within the 

four corners of the Constitution? 

Mr. ROSENKRANZ. Well, I guess it depends on the circumstances 

of your hypothetical. It would not be appropriate if it were, for example, motivated by race or something, but on the facts you have 

described, if the prosecutor thought he did not have the resources 

to prosecute a particular crime or perhaps was not sure that he 

had the evidence for a particular element of the crime, then yes, 

that is an appropriate exercise of discretion. 

Mr. JEFFRIES. And the executive branch in the prosecutorial context, for instance, the Department of Justice or in the immigration 

context within Homeland Security—they have an ability to 

prioritize the nature of the offenses that they enforce. Is that correct? As an appropriate exercise of their constitutional authority. 
78 

Mr. ROSENKRANZ. The executive branch has authority to husband 

its resources in the most efficient way that it sees fit. So the President does not have the money or resources to completely execute 

every law, and so he does have to, by necessity, make decisions 

about enforcement priorities, yes. 

Mr. JEFFRIES. Now, so you have concluded, I believe, that the 

presidential exercise of authority in the DACA context with respect 

to deferred action, a certain class of individuals—do you believe 

that that is an unconstitutional exercise of his authority? 

Mr. ROSENKRANZ. Sorry. In the immigration context? 

Mr. JEFFRIES. In the immigration context. 

Mr. ROSENKRANZ. Yes, I do. 

Mr. JEFFRIES. And you believe that is the case because of the fact 

that you contend it was a wide-ranging exercise that was not made 

on a case-by-case basis? What is the foundation of your belief that 

it is unconstitutional? 

Mr. ROSENKRANZ. I think there are two basic reasons. One is 

that it goes dramatically further than the hypotheticals we were 

discussing before. This is not a prosecutor deciding on a case. This 

is a President deciding on 1.8 million cases. 

And the second striking thing about it is the President deciding 

on exactly the set of cases that Congress considered exempting and 

decided not to exempt. That is what is particularly shocking about 

it. 

Mr. JEFFRIES. Reclaiming my time, you are familiar with the criteria that has been set forth for the determinations that are made, 

I believe, on a case-by-case basis as it relates to who qualifies for 

this deferred action. Are you not? 

Mr. ROSENKRANZ. Yes. 

Mr. JEFFRIES. So, for instance, one of the criteria, you must have 

entered the United States before their 16th birthday and be younger than 31 as of June 15, 2012. That is one particular criteria. 

Another is cannot have convictions of any felony offense, significant misdemeanor, or have committed any three misdemeanor offenses. 

Those are pretty specific enumerated categories. 

But another category which helps to determine whether discretion is appropriate is you cannot pose a threat to public safety or 

national security. Isn’t that a pretty broad category within which 

discretion can be exercised on a case-by-case basis as to whether 

in fact you pose a threat to public safety or national security, that 

that is not a specifically constrained factor that people either automatically fall within or automatically fall without? 

Mr. ROSENKRANZ. Well, I think it is quite a dramatic shift in the 

status quo. So 1.8 million will presumptively be allowed to stay. I 

cannot imagine that but a tiny fraction of them will be found to fall 

within that exception. 

Mr. JEFFRIES. Okay. And I would just note that of these individuals, more than 450,000 have been granted deferred action, but in 

excess of 100,000 have been denied access or have not received that 

grant of discretion. 

And I yield back. 

Mr. GOWDY. I thank the gentleman from New York. 

The Chair will now recognize himself for 5 minutes of questions. 
79 

It strikes me that the law can require action or forbid action. The 

law can forbid the possession of child pornography. The law can, 

in some instances, require you to file an income tax return. 

Mr. Lazarus, is the chief executive constitutionally capable of ignoring both categories of law? 

Mr. LAZARUS. Well, as I said several times, Congressman Gowdy, 

the President cannot refuse to apply or enforce a law for policy reasons. 

Mr. GOWDY. Well, let’s analyze that for a second. The Congress 

decided in its collective wisdom that if you possess X amount of a 

controlled substance, you are going to get X amount of time in prison. You may like mandatory minimums; you may not like them. 

This Administration summarily dispensed with that law. 

So my question to you again is, can the chief executive fail to enforce categories of law that are both permissive and mandatory? 

Mr. LAZARUS. It is well established that the executive branch has 

prosecutorial discretion to decline—— 

Mr. GOWDY. And what are the limits of that prosecutorial discretion? 

Mr. LAZARUS. You know, very frankly I am not an expert on that. 

Mr. GOWDY. Well, let me ask you this. Let’s assume that a statute required you to show two pieces of identification to purchase 

a firearm. Can the chief executive knock that down to one? 

Mr. LAZARUS. I guess I’d have to know a little bit more, but I 

would—— 

Mr. GOWDY. It is a very simple fact pattern. You have to show 

two forms of ID to possess or purchase a firearm—to purchase a 

firearm. Can the chief executive under his pardon authority or his 

prosecutorial discretion authority knock that down to just one form 

of identification? 

Mr. LAZARUS. Well, I am not aware of limits on the President’s 

pardon authority. 

Mr. GOWDY. So you would say he could. 

Mr. LAZARUS. Under the pardon authority, the President can pardon just about anyone, not that he should—— 

Mr. GOWDY. Even before the act is committed? 

Mr. LAZARUS. That is the reason for—— 

Mr. GOWDY. Can he do it before the act is committed? That is 

my question. 

Mr. LAZARUS. I am sorry? 

Mr. GOWDY. Can he do it before the act is committed? 

Mr. LAZARUS. Again, that is above my pay grade. I do not really 

know that. 

Mr. GOWDY. If the President can fail to enforce immigration 

laws, can the President likewise fail to enforce election laws? 

Mr. LAZARUS. Did you ask whether the President can pardon 

someone before a prosecution is initiated or before an act—— 

Mr. GOWDY. Well, I think I know the answer to that question. 

My question was before the act was committed. He certainly can 

before prosecution. 

My question is this. If you can dispense with immigration laws 

or marijuana laws or mandatory minimums, can you also dispense 

with election laws? 
80 

Mr. LAZARUS. Again, I think we have gone over this ground 

many times. 

Mr. GOWDY. Well, just humor me. Let’s do it one more time. Can 

the President suspend election laws? 

Mr. LAZARUS. No. 

Mr. GOWDY. Why not? If he can suspend mandatory minimum 

and immigration laws, why not election laws? 

Mr. LAZARUS. Because we live in a Government of laws, and the 

President is bound to obey them and apply them. 

Mr. GOWDY. Well, he is not applying the ACA, and he is not applying immigration laws, and he is not applying marijuana laws, 

and he is not applying mandatory minimums. What is the difference with election laws? 

Mr. LAZARUS. We have a disagreement as to whether, in fact, he 

is applying those laws. My view is that he is applying those laws. 

Mr. GOWDY. Did Eric Holder instruct his prosecutors to no longer 

follow the mandatory minimums with respect to charging decisions? 

Mr. LAZARUS. This is an area where I really do not know nearly 

as much as you do, Congressman. 

Mr. GOWDY. I would find that shocking that anybody would not 

know more than I do on any topic. 

Do you want me to ask Professor Turley? 

Mr. LAZARUS. I would say that my impression is that he is not 

exactly doing what you have just said. 

Mr. GOWDY. Well, tell me how I am wrong because Eric Holder 

sent out a memo that we are no longer going to put in the indictment the drug amounts. 

Do you agree with me that Congress can pass mandatory minimums? 

Mr. LAZARUS. Constitutionally? Yes. 

Mr. GOWDY. Do you agree that Congress can pass statutory 

maximums? 

Mr. LAZARUS. Pardon me? 

Mr. GOWDY. Can Congress also pass statutory maximums? In 

other words, you cannot get more than 30 years for a crime. 

Mr. LAZARUS. Of course. 

Mr. GOWDY. Can a President exceed a statutory maximum? 

Mr. LAZARUS. Can he extinguish did you say? 

Mr. GOWDY. No. Can he exceed it? 

Mr. LAZARUS. Can he exceed it? Well, how would he do that? You 

mean keep someone in prison beyond his prison term. 

Mr. GOWDY. Well, if you can put him in prison for less time than 

Congress says is the law, can you also do it for more time than 

Congress says is the law? 

Mr. LAZARUS. You know, this is kind of fruitless because it is an 

area that I really do not know—— 

Mr. GOWDY. Professor Turley, what are the limits of prosecutorial discretion? And if the President can suspend immigration 

laws, marijuana laws, why not election laws? 

Mr. TURLEY. Well, I think that some of these areas, I cannot 

imagine, can be justified through prosecutorial discretion. It is not 

prosecutorial discretion to go into a law and say an entire category 

of people will no longer be subject to the law. That is a legislative 
81 

decision. Prosecutorial discretion is a case-by-case decision that is 

made by the Department of Justice. When the Department of Justice starts to say we are going to extend that to whole sections of 

laws, then they are engaging in a legislative act, not an act of prosecutorial discretion. Wherever the line is drawn, it has got to be 

drawn somewhere from here. It cannot include categorical rejections of the application of the law to millions of people. 

Mr. GOWDY. Well, my time is up, but I would just tell you that 

I always thought prosecutorial discretion was an individual prosecutor determining whether she or he has enough facts to substantially result in a conviction on a case-by-case basis. If a President 

is ignoring entire categories of the law, whether it be immigration, 

marijuana, mandatory minimum, the ACA, what is the remedy for 

the legislative branch? 

Mr. TURLEY. Well, first of all, the first part of the question is— 

as you may know, I do criminal defense work. I would never go to 

a prosecutor and say I want your prosecutorial discretion to say 

that the entire class of which my client belongs cannot be subject 

to this law because prosecutors would look at me and say are you 

insane. I am not Congress. So I would not even raise the question. 

Now, in terms of where we go from here, I am not too sure because the great concern I have for this body is that it is not only 

being circumvented but it is also being denied the ability to enforce 

its inherent powers. Many of these questions are not close in my 

view. The President is outside the line. But it has to go in front 

of a court, and that court has to grant review. And that is where 

we have the most serious constitutional crisis I view in my lifetime, 

and that is, this body is becoming less and less relevant. 

Mr. GOWDY. With that, we will recognize the gentlelady from 

Texas, Ms. Jackson Lee. 

Ms. JACKSON LEE. Let me thank the majority and the minority, 

Mr. Conyers, for holding this hearing. 

Let me thank the witnesses. Whenever witnesses come before 

our body, it is of course valuable and we trust your judgment, although we may disagree with you vigorously. 

Let me say that the wasteland that Mr. Lazarus spoke of—and, 

Mr. Lazarus, please let me cite you and indicate that I will be 

using this across the land, the vast lands of this Nation, which is 

a rhetorical make-waste that this hearing equates, but also to suggest that the reason why this body that Professor Turley has suggested may be on the verge of some basis of irrelevancy, which I 

take issue with, is because under the present House leadership, we 

have passed no legislation for the President to be able to implement in the first place. We have not passed immigration reform. 

We have not dealt with the question of mandatory minimums. We 

have not dealt with a budget process. We have not dealt with sequester. If we would simply do our job, the relevance to the American people would exceed our expectation. 

I just came from the Fast for Families. Just a few hours ago, we 

had in this room DREAMers. As far as I am concerned, the duty 

of the President is to be the ultimate giver of relief within the context of the Constitution and the necessary relief of the people who 

are begging for relief. If you read the lines that we are so intellectually gifted to interpret, along with precedents, it says that he 
82 

shall take care that the laws be faithfully executed and shall commission all of the officers of the United States. Well, I could be a 

believer, and therefore, my faith says that the President is taking, 

within the context of the laws, the ability to implement to help the 

most vulnerable. And what we are doing here is a rhetorical wasteland of ignoring the pain of our Nation. 

And let me give you an example. First of all, my good friend from 

South Carolina knows full well as a Federal prosecutor that each 

day prosecutors are making distinctive decisions about who to prosecute and how within the context of the law. 

And to answer the question for you, Mr. Lazarus, the issue is 

that in election laws you follow the law, but you have the right in 

a prosecutorial posture to determine whether you are prosecuting 

or not. That is what happened with mandatory minimums. That is 

what is happening with the issue of drugs. That is what the Attorney General is speaking of. He is not throwing laws to the wasteland. We are in this hearing, for it has no sense to it. 

And then it is interesting that we have not understood the question of the Secretary of Homeland Security. She issued a memo to 

her staff. She has an inherent authority to deal with policy. Each 

of the deferred adjudications or the deferments for DREAMers is 

individually assessed. What is the constitutional gobbledygook talking about? They do not understand the difference between policy 

and the ability to do that? 

And so I have had DREAMers come to my office. I could not 

waive a magic wand. They had to go through the process. The 

memo indicates that it went to CBP, ICE, immigration enforcement, and others. 

And so I am taken aback that this issue does not come with humanitarianism, and that if there should be a hearing, it should be 

a hearing of the failure of this Congress to act on its constitutional 

responsibilities. 

Let me ask on the Affordable Care Act, which is now just another way, if I might say so, of having the 50th and the 52nd and 

the 53rd challenge on the Affordable Care Act. Mr. Lazarus, to go 

back to a comment about these exchanges, another wasteland, that 

if your State does not have an exchange, just on practical English, 

it means that you in the State cannot comply, meaning you, the citizen, are left in a wasteland of noncompliance, what do you get on? 

And so we have established the national exchanges. Would we have 

preferred to have State exchanges and to have a list of State insurers? Yes. Would we prefer for Republicans not to encourage young 

people not to do what is best for them by getting covered? Yes. 

But my question is if the directive is to run such exchanges, that 

means the same characteristic, Federal exchange, including the tax 

credit that allows poor people to have insurance, obviously, these 

are allowed. I am sort of coming in the middle of my question, Mr. 

Lazarus. This is for you. In essence, in States that have refused exchanges, the Federal Government stands in the shoes of the States. 

Does that not further illustrate why you, not Mr. Cannon, are correct based on the pure text of the law and that the President is 

carefully, faithfully implementing the law? Would you go over that 

for us again so that it can be in the record? 
83 

Mr. LAZARUS. Well, that interpretation is what I support, what 

the President, and the Administration supports, and what I think 

will certainly prevail in court, and that is that what the law provides is that if a State declines to set up an exchange, then the 

Federal Government shall establish such exchange. It says such exchange in the law. And as you just stated in common sense terms, 

the Federal Government then will stand in the shoes of the State 

in operating that exchange and the exchange will be exactly the 

same, have all the same powers, authorities, and responsibilities 

that an exchange that is being managed by a State government 

would have. Any other interpretation, the one that my friend, Mr. 

Cannon, here is promoting so vigorously, makes no sense and 

would actually cause the whole exchange part of the ACA to fail 

in every one of these States. So it makes no sense whatsoever I 

think. 

Ms. JACKSON LEE. May I just have an additional 30 seconds? He 

did not answer. Does this not exceed—— 

Mr. LAZARUS. I am sorry. 

Ms. JACKSON LEE. Does this not exceed the authority of the 

President—— 

Mr. GOWDY. We are already 2 minutes over. So if you could give 

us a very pithy response, it would be great. 

Ms. JACKSON LEE. You are very kind, Mr. Chairman. Thank you, 

Mr. Chairman. 

Mr. Lazarus? 

Mr. LAZARUS. I think the President is not violating his ‘‘take 

care’’ responsibilities by acting on the interpretation. 

Ms. JACKSON LEE. And do you associate with my interpretation 

of the statements I made previously? 

May I ask for a submission into the record? I am finished. 

Mr. GOWDY. You can submit all your questions for the record. 

Ms. JACKSON LEE. No, no. May I just submit a document of an 

op-ed—— 

Mr. GOWDY. Without objection. 

Ms. JACKSON LEE [continuing]. Dated August 15, 2007 by myself 

on signing statements? I ask unanimous consent. 

Mr. GOWDY. Without objection. 

[The information referred to follows:] 
84 

OP-ED 

BY 

CONGRESSWOMAN SHEILA JACKSON LEE 

"CONGRESS MUST ACT TO PRESERVE THE AMERICAN SYSTEM 

OF SEPARATED POWERS AND CHECKS AND BALANCES BY 

PROHIBITING COURTS AND AGENCIES FROM CONSIDERING 

PRESIDENTIAL BILL SIGNING STATEMENTS WHEN 

CONSTRUING ACTS OF CONGRESS" 

AUGUST 15, 2007 

One of the most important actions the Congress should take when it 

returns from the August recess is to move swiftly to check the systematic 

attempt by the current Administration to concentrate power in the 

executive branch of the federal government. From conducting warrantless 

wiretaps to extraordinary rendition to secret prisons abroad to presidential 

bill signing statements, the Bush Administration has revealed itself as 

unrelenting foe of the system of checks and balances and separated powers 

so carefully crafted by the Framers. 

Nowhere is this contempt for the constitutional structure that is part 

of the American birthright demonstrated more clearly than with respect to 

the abuse and misuse of presidential signing statements. 

Presidential signing statements seek to alter Congress' primacy in the 

legislative process by giving the President's intention in signing the bill 

equal or greater standing to Congress' intention in enacting it. This would 

be a radical, indeed revolutionary, change to our system of separated 

powers and checks and balances. 

Bill signing statements eliminate the need for a president ever to 

exercise the veto since he could just reinterpret the bill he signs so as to 

make it unobjectionable to him. Such actions deprive Congress of the 

chance to consider the president's objections, override his veto, and make it 

clear that the president's position is rejected by an overwhelming majority 

- 3 
85 

of the people's representatives. Since few presidents wish to suffer a 

humiliation so complete and public they have strong incentive to work 

closely with the Congress and are amenable to negotiation and 

compromise. This is precisely the type of competitive cooperation the 

Constitution contemplates and which bill signing statements threaten. 

While it is true that presidents have used signing statements since the 

Monroe Administration, they really came to prominence during the 

administration of Ronald Reagan, who issued 276 signing statements, 71 of 

which (26%) questioned the constitutionality of a statutory provision. The 

goal, as articulated by Samuel Alito, then an obscure Department of Justice 

lawyer and now an Associate Supreme Court Justice Samuel Alita, was to 

establish the signing statement as part of a statute's legislative history 

which courts would use in interpretation. 

The record of the Bush Administration has taken bill signing 

statements to the extreme. In less than six years, President Bush has issued 

more than 125 signing statements, raising more than 800 constitutional 

objections. This is almost 500 more constitutional objections interposed by 

in the 20 year period between 1981-2001 by the Reagan, Clinton, and first 

George Bush Administrations. 

Not coincidentally, President Bush's signing statements have 

challenged the constitutionality of extremely high-profile laws such as the 

reporting prmisions under the USA PATRIOT Act of 2005, and the McCain 

Amendment prohibiting torture. The president's statements have 

essentially asserted that President Bush does not believe that he is bound 

by key provisions of the legislation. They seek to further a broad view of 

executive power and President Bush's view of the "unitary executive," 

pursuant to which all the powers lodged in the Executive and 

administrative agencies by Congress is somehow automatically and 

constitutionally vested in the President himself. 

In most cases, President Bush's signing statements do not contain 

specific refusals to enforce provisions or analysis of specific legal 

objections, but instead are conclusory assertions that the president will 

enforce a particular law or provision consistent with his constitutional 

authority, making his true intentions and scope unclear and rendering 

them difficult to challenge. 
86 

What makes President Bush's use of presidential signing statements 

doubly problematic is his demonstrated and documented reluctance to 

raise his constitutional objections in a veto message to Congress, as 

contemplated by the Constitution. Indeed, to date, more than half-way 

through his second term, President Bush has only vetoed two bills (both 

relating to embryonic stem cell research), notwi.thstanding the more than 

800 constitutional objections he has raised during this same period of time. 

The president is trying to game the system. Rather than risk a 

showdown with the Congress over some claimed constitutional right he 

thinks he possesses but cannot articulate or defend in the light of day, the 

president simply signs the law as if he accepts its constitutional validity and 

then when no one but Vice-President Cheney is watching issues a signing 

statement saying he will comply with the law only to the extent he feels 

legally bound to do so, which of course, he doesn't. 

This sort of presidential shenanigan would embarrass and anger the 

Founding Fathers. Embarrass them because the action is cowardly, which 

was hardly to be expected of the Chief Executive of the United States. It 

would anger them because it makes a mockery of the system of checks and 

balances they so carefully crafted. 

In its report, the American Bar Association's blue-ribbon Task Force on 

Signing Statements concluded that the current practice represents "a real 

threat to our system of checks and balances and the mle oflaw." It is for 

this reason that I have introduced H.R. 264, the "Congressional Lawmaking 

Authority Protection Act. (CLAP Act)" 

5 -
87 

Mr. GOWDY. Before I recognize the gentleman—— 

Ms. JACKSON LEE. I thank the Chairman and I thank the witnesses. I yield back. 

Mr. GOWDY. Before I recognize the gentleman from Idaho, for 

those of our panelists who may not be able to avail themselves of 

the history of this Committee from 2008 to 2010, the other side 

controlled this Committee, and not one single solitary piece of immigration reform was produced. Now, let’s be fair. I have got colleagues like the gentleman from Illinois who are equally desirous 

of immigration reform no matter who the President is. But let’s do 

not rewrite history. From 2008 to 2010, the Democrats controlled 

this Committee and nothing with respect to immigration reform. So 

do not talk to me now about what a huge priority it is. 

I recognize the gentleman from Idaho. 

Ms. JACKSON LEE. Will the gentleman yield? 

Mr. LABRADOR. Mr. Chairman, thank you for the time. Panelists, 

thank you for being here. 

Mr. Lazarus, I have been listening to you for 2 and a half hours 

now, and I have not heard a single time where you have told me 

where in the law the Federal exchanges are given the authority to 

grant these subsidies. You talk about policy. You talk about what 

you think the President wants. You take about what you think the 

Democrats want. Tell me in the statute just one time where it says 

that the Federal exchanges are supposed to give this subsidy. 

Mr. LAZARUS. Yes. I did not go into detail and I do not think that 

my friend, Mr. Cannon, did either. 

Mr. LABRADOR. I think he did. He mentioned the numerous times 

where it gives this solely to the State exchanges. 

Mr. LAZARUS. Let me answer the question. 

First of all, I ask that the Committee include written testimony 

that I gave to a Subcommittee of Congressman Issa’s oversight 

Committee that goes into detail about what the—— 

Mr. LABRADOR. Just name one. I just want one section of the law. 

I do not have that much time. Name one section of the law. 

Mr. LAZARUS. And secondly, I also—— 

Mr. LABRADOR. You do not know. 

Mr. LAZARUS. No, no. I did not say I do not know. 

Mr. LABRADOR. You name one section of the law. 

Mr. LAZARUS. I want to say that I had—— 

Mr. LABRADOR. One section of the law, Mr. Lazarus, where it 

says that. 

Mr. LAZARUS. I would cite two sections. 

Mr. LABRADOR. Okay, thank you. That is all I am asking. 

Mr. LAZARUS. The first section is one that Congresswoman Lee 

referred to and that is where the law says that in the event that 

a State does not set up its own exchange, then the Secretary of 

Health and Human Services shall establish such exchange. Our interpretation and the Administration’s interpretation is that the 

words ‘‘such exchange’’ should be interpreted to mean that the exchanges will operate on the same terms and have the same authority. Michael does not agree with that, but that is the interpretation. 

Secondly—and I think this is really quite important—when the 

statute defines exchange with a capital E—it puts a capital E in 
88 

there—it says the exchange shall be an exchanged established by 

the State under the relevant section. And then—— 

Mr. LABRADOR. I reclaim my time. I just asked you a simple 

question. 

Mr. LAZARUS. So the—— 

Mr. LABRADOR. Mr. Turley and Mr. Cannon, I think both of you, 

coming from different political points of view, had some of the same 

concerns that I had about the prior Administration, about the Bush 

administration. In fact, I read some of your writings, Mr. Turley, 

before I was a Member of Congress. 

Mr. TURLEY. Bless you. [Laughter.] 

Mr. LABRADOR. And I was very concerned about the imperial 

presidency. I was very concerned about having a Republican with 

Republicans in Congress who were not willing to be a check and 

a balance on a Republican President. And in fact, like Mr. Cannon 

stated in his testimony—I think it was you. I cannot remember 

which one of you it was who stated that maybe the one thing that 

you liked about Obama—you seem to agree with his policies. You 

seem to kind of like the fact that he was going to be a check on 

what previous Presidents had done. 

So I am actually really disappointed that we are here at this 

hearing today, and I am surprised that my friends on the other 

side do not think that this is an important hearing because they 

seem to bitch and whine for 8 years about what the Bush administration did. And all of a sudden, they do not seem to have one single concern about what this President is doing with this authority. 

What do you have to say about that, Mr. Turley? 

Mr. TURLEY. Well, I believe that this institution is facing a critical crossroads in terms of its continued relevance in this process. 

What this body cannot become is a debating society where it can 

issue rules and laws that are either complied with or not complied 

with by the President. I think that is where we are. 

And where Mr. Lazarus and I disagree, Mr. Lazarus keeps on 

saying, look, a President cannot ignore an express statement on 

policy grounds. I am not too sure what is involved here. If you look 

at the individual mandate, the policy issue there was that a great 

number of people were upset. They felt that there was a bait and 

switch. That is not the same thing that we see with like the environmental statutes that Mr. Lazarus points out. That is a political 

issue, a policy issue where the President said I do not want this 

to happen now and a lot of people are upset with it. That would 

seem to me if that is not a policy question, I do not what is. And 

by Mr. Lazarus’ own definition, that would seem to be outside the 

authority of the President. 

But in terms of the institutional issue that you are raising, look 

around you. Is this truly the body that existed when it was formed? 

Does it have the same gravitational pull and authority that was 

given to it by its Framers? You are the keepers of this authority. 

You took an oath to uphold it. And the Framers assumed that you 

would have the institutional wherewithal and, frankly, ambition to 

defend the turf that is the legislative branch. 

Mr. LABRADOR. Mr. Cannon, it seems to me that Mr. Lazarus is 

arguing that the President can do anything that we refuse to act 

on. And I think that goes beyond what the constitutional powers 
89 

that were given to the President by our Founding Fathers. In fact, 

if you follow his logic, it seems to me that if he next decides that 

he wants to make sure that nobody who came here illegally, who 

came here just to work in agriculture, for example, can be deported 

because there would be some humanitarian concerns about deporting these people that he has the express authority to actually do 

that. 

I am actually a proponent of immigration reform. I want immigration reform to be done. And I think the actions of the President 

have made it less likely that this body is going to act because we 

are not sure what he is going to enforce and what he is not going 

to enforce. 

What are your comments on that? 

Mr. CANNON. I think that there is no bright line, as far as I 

know, to be drawn between enforcement discretion and legislating. 

I think that the President’s actions with regard to the Patient Protection and Affordable Care Act—wherever you draw that line, he 

is on the wrong side of it. 

But I think the best way to curtail the abuse of prosecutorial discretion is to have fewer crimes. We have a lot of crimes in our immigration laws that I just do not think should be here. I think our 

drug war creates a lot of criminals, and there are a lot of crimes 

on our books as a result of the drug war that should not be there. 

And that is why prosecutors across this country are stretched so 

thin, why prisons are overcrowded. And when you have a situation 

like that where you have got a surplus of crimes and not enough 

resources to prosecute all of them, then you put a lot more power 

in the hands of individual prosecutors, as well as the executive 

branch generally, to decide how these laws are going to be enforced 

or not enforced. I think on a macro level that is how you try to attack this problem. 

Mr. LABRADOR. Thank you. 

I yield back my time. 

Mr. GOWDY. The gentleman yields. 

The Chair would now recognize the gentleman from Illinois, my 

friend, Mr. Gutierrez. 

Mr. GUTIERREZ. Thank you very much, Mr. Chairman. 

Well, once again we are not legislating in this Committee. We 

could be using this time to find common ground and even have a 

strenuous and substantive debate on important public policy matters, but instead I think what we are doing is offering empty assurances and shaping political messages for next fall. Rather than 

worrying about whether the President we know—and you ‘‘distrusts’’ is enforcing our laws the way you would like him to, we 

could be making meaningful progress toward crafting and passing 

laws for the betterment of the American people. 

The President is not a Member of this Committee. He does not 

sit on this Committee. He does not have a vote in the House of 

Representatives. We should craft legislation and get it done. And 

then we should make sure that that legislation is enforced. 

Now, I know that some people say, well, he is not enforcing the 

legislation. Let me just suggest to everybody when he got sworn in 

as President of the United States, Secure Communities was nothing in this country. There are hundreds and hundreds of agree-
90 

ments with county, State, and local—how do you think the apparatus was created to deport 2 million people in the last 5 years? 

By accident? That apparatus did not exist under George Bush. It 

was created under his Administration and implemented by this 

President. And that is something that I am happy about, 287(g) 

agreements that have been made with one locality after another. 

We are going to sit here and actually that Congresswoman 

Sinema, our colleague, who hired one of the DREAMers after she 

applied for DACA and successfully got her work permit and is now 

her district—her mom is under a current order of deportation. She 

quit her job today as a congressional aid to go and fight for her 

mom. And we are saying that he is not enforcing the law? I assure 

you that if you are fighting this Administration, as I and many others are fighting this Administration each and every day, you will 

find this President is, indeed, enforcing the law. Unfortunately, he 

should not be limiting his prosecutorial discretion. He should be expanding his prosecutorial discretion. 

Now, on the substantive issue of DACA, the fact is we passed the 

DREAM Act in the House of Representatives in the fall of 2010, 

216 to 208. But then we went to the Senate, Mr. Turley, and over 

there they said you need 60 votes now to get something done. We 

always talk about the Framers. I do not remember any Framers 

saying you need more than one vote in the majority in the Senate. 

But now you need 60. So they only got 55. So clearly the established will of the majority of the Senators and the House of Representatives was to do what? To protect the DREAMers. That is 

what the President did. He took the express will of the House and 

the Senate, if not for this new rule that they invented that they 

have had, I think, now for 35 years that you need the super majority of 60 votes. If we needed that here, even my colleagues on the 

Republican side would have a difficult time getting legislation 

passed. 

So all I am trying to say is when we move the ball forward, the 

President looked at it. And I just want to say that I do not know 

about the other, but it seems like Bo Cooper, former INS General 

Counsel; Paul Virtue, former INS General Counsel—these are general counsels of the INS. Each of them established that the President of the United States does have prosecutorial discretion when 

he gets to decide who to prosecute and who not to. And that is 

what he did. He set children aside and said I am no longer going 

to prosecute them because they do not present an imminent threat. 

And guess what, Mr. Chairman. A year and a half later, 500,000 

of them are walking around, and I assure you because I know the 

way this place works if you can find one and bring them up here 

that shows how he has caused some danger or some harm, that 

person would have already have come. But the fact is that they are 

not. They are working in congressional—three of them are working 

in my congressional office filling out more. Look, they are American 

citizens in everything but a piece of paper. 

And all I want to do—and I want to establish because the Chairman is absolutely correct. I am going to say this. When we were 

in charge in 2007 and 2008, we were worried about losing our majority because your side was beating the crap out of us. I am sorry. 

Maybe that word should not be used here. But that is what you 
91 

were doing. So if a Democrat voted for immigration reform, your 

side went boom, boom, boom, boom and knocked them out. Right? 

And then we were in the majority in 2009 and 2010, and we did 

nothing. I agree with you we did nothing. 

But let’s not repeat history. Let’s not say you did not do anything, so we are not going to do anything. No. Let’s do something. 

I want to end with this. Here is what I would like to do. I want 

to step outside of my Democratic Party because I know there are 

men and women on your side of the aisle that want to step outside 

of their Republican Party and join an American party on the issue 

of immigration because I know there is common ground that we 

can reach. And then the President will not have to be taking these 

actions because more and more what you are going to find is people 

are going to say Congresswoman Sinema’s staffer—we should not 

deport her mom. Mr. President, stop the deportation of that mom. 

So all we are going to do is—look, they are here. There are 11 

million of them. Let’s figure out a way how we legalize their status, 

and let’s figure out—if you want triggers, let’s put the triggers in. 

But in the end, we are going to have to come back here, and when 

they become American citizens, they are all going to become American citizens. We should get over that because you know what is 

going to happen, Mr. Chairman? If we pass legislation and they all 

do not go to citizenship, the next day somebody is going to show 

up and say that Congressman Gutierrez did not do a good enough 

job. That is the positive thing. Somebody comes and says we did 

not do a good enough job. 

Thank you. You have been so kind and so generous. I know one 

thing. Eventually we are going to have a hearing here. We are 

going to call you all back and you are going to let us know how 

we are going to get this done. I pray that that happens. It is the 

right thing for America. Thank you very much. 

Mr. GOWDY. I thank the gentleman from Illinois. 

The Chair will now recognize the gentleman from Arizona, Mr. 

Franks. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Mr. Chairman, the subject of today’s meeting is pretty profound 

related to the rule of law, and there are so many examples that 

some of us point to, and it is hard to name them all. So I am just 

going to point to a few that this Administration seems to have 

stepped outside the boundaries of ‘‘the rule of law.’’ 

Taxing political contributions. Again, not in the law. Political 

speech disclosures for Federal contractors. The deep water drilling 

ban. Mr. Holder’s attempt to reform criminal justice by selectively 

enforcing our laws. Mr. Obama’s unilaterally ignoring immigration 

laws in many cases. Unconstitutional recess appointments. Fast 

and Furious, unconstitutional efforts there to walk guns. Unconstitutional wiretaps of the AP. The IRS scandal, one of the more egregious ones, as the gentleman mentioned that it subverts the entire 

political process. And of course, Obamacare, which I will touch on 

in a moment. 

But all of these are examples where this President, in the words 

of my friends on the left, has exercised prosecutorial discretion— 

that is the word—presidential pardon powers. But I think they are 

more along the lines that Professor Turley said. These could be 
92 

considered royal prerogatives, which if my history is right, that is 

what we had that little unpleasantness with Great Britain about. 

So the subject here is of profound significance. 

And I would suggest, Mr. Chairman, that not only in the application of the law has this Administration held themselves unconstrained by the Constitution or even the truth in many cases, but 

even in the process of getting the law. 

On Obamacare, this was passed in a unique situation. You know, 

I see in Mr. Cannon’s testimony especially—it is probably the perfect citation. I see in your testimony that you write, ‘‘President 

Obama’s unfaithfulness to the PPACA is so wanton it is no longer 

accurate to say that the Patient Protection and Affordable Care Act 

is ‘the law of the land.’ ’’ You know, it is kind of ironic because some 

of my colleagues, about 53 of us, have signed on to the House resolution stating that we believe that Obamacare has yet to be the law 

of the land because it violated the Origination Clause of the U.S. 

Constitution when it was passed. And we do not talk about that 

a great deal, but it is significant because the Origination Clause, 

which was vital to the Constitution ever coming in to existence in 

the first place—it was the critical negotiation that took place to 

allow the Constitution to exist—requires that all bills for raising 

revenue originate in the House. 

And incidentally, Mr. Cannon, your colleague Ilya Shapiro at 

Cato has written an excellent piece laying out this argument, and 

I am going to ask that this be placed in the record here in a moment and also would like to ask you to address it if you have a perspective of it. 

But the bottom line that is at issue here is that if the U.S. Senate can take a totally unrelated piece of legislation and strike everything but the number and take legislation that they called the 

Senate health care bill and place it in its entirety, which raises 

taxes to an enormous degree—if they can take any bill in the 

House and do that, then I would suggest to you, especially after the 

Supreme Court has labeled Obamacare a tax—they have officially 

called it a tax. And if indeed it can be done this way, then I would 

suggest to you that the Origination Clause is a dead letter. There 

is no more purpose for it being in the Constitution. And it is something that I hope that we will look at more carefully. 

So if it is all right, Mr. Cannon, I am going to address my question to you. Do you have anything that would help illuminate this 

in ways that the rest of us can understand? 

Mr. CANNON. Well, this is a provision of the Constitution that 

has not really been used or employed by the Supreme Court to 

knock down any revenue measures that were alleged to have originated in the Senate instead of in the House as required by the 

Constitution. 

I think that what happened with the PPACA is a more extreme 

example of the abuse of—or a more extreme violation of the Origination Clause than what we have seen in the past. As you say, a 

bill came up with a totally unrelated revenue measure, came over 

from the House. The Senate stripped out everything within that 

bill, kept only the bill number, H.R. 3590, I believe, and inserted 

into that the Patient Protection and Affordable Care Act, which 

had all sorts of revenue measures, including the individual man-
93 

date, which we did not know then was a tax, but now we know it 

is a tax until the Administration changes its mind again, which it 

continues to do. 

There is nothing in the bill number that is a revenue measure. 

All the revenue measures had been stripped out of that bill. So if 

the Origination Clause means anything, then it means that that 

revenue measure that the Senate passed and then the House 

passed and that we now call the Patient Protection and Affordable 

Care Act originated in the Senate and the Senate did not have the 

power to originate a bill—a revenue measure like that. 

But the difficulty is will the courts enforce that part of the Constitution. There is a difficult line to be drawn between when are 

you amending a revenue measure that came from the House and 

when are you originating a new bill. I think that reasonable people 

can disagree about where that line will be drawn. I do not think 

that reasonable people can disagree about whether the Senate’s 

gutting of H.R. 3590 and inserting into that a totally new revenue 

measure—I do not think anyone can disagree that that is on the 

wrong side of that line. It remains to be seen whether the courts 

will uphold that part of the Constitution. If they do, then probably 

they would have to strike down the entire PPACA. 

Fortunately, there is a lawsuit that is making its way through 

Federal courts—it has been filed by the Pacific Legal Foundation— 

that challenges the individual mandate under the Origination 

Clause. 

Mr. FRANKS. Mr. Chairman, thank you. I guess if this Administration does not succeed in stacking the D.C. Circuit, we should 

find out whether the Origination Clause still means anything at all 

with the case that the gentleman mentions. 

Mr. GOWDY. I thank the gentleman from Arizona. 

The Chair would now recognize the gentleman from North Carolina, the former U.S. Attorney, Mr. Holding. 

Mr. HOLDING. Thank you, Mr. Chairman. 

Professor Turley, throughout your testimony, you have alluded 

several times that there are incidents that you believe that the 

President has stepped over the line, and we have talked about a 

number of them. But I would just ask for you to recap and maybe 

give us your top five instances where you think that he has overstepped the line and breached the Constitution. 

Mr. TURLEY. Thank you very much, Congressman. 

First of all, I do think that there is a number of provisions in 

the ACA where he did overstep the line. The decision on individual 

mandates strikes me as a rather obvious policy determination from 

the President that he did not want to see it enforced, given the 

amount of public opposition that occurred and accusations of a bait 

and switch. Those are all political issues. This was not Clean Air 

Act regulation that was stuck in the mire of regulatory disagreements as to a command and control statute. 

I also believe that the employer mandate, which was also extended, constitutes a significant change in the legislation. 

I also believe that the immigration issue is well across the line. 

I actually agree with the President on the decision that was made, 

but that does not matter because it was not made in a way that 

is allowed under our Constitution. 
94 

One of the things that I would point your attention to, Congressman Holding, is that if you look at each of these questions, a couple 

of things jump out at you. One is they happen to occur in areas 

of tremendous political division, if not deadlock. That is precisely 

the type of issue that the Framers wanted to go through the legislative process because our process, unlike other systems that would 

explode into the streets of Paris and other cities, we have a type 

of constitutional implosion. We direct those pressures to the center 

of Congress, and from that, we take disparate factional interests 

and turn them into a majoritarian compromise. 

Mr. HOLDING. If I could get you to keep going down the list of 

instances where you think that he has overstepped. 

Mr. TURLEY. The other two that really come out to me is really the issue of the $454 million in the prevention fund issue for the 

Federal health care insurance exchange and also the $700 billion 

for the State exchanges and then finally essentially the subsidies 

for congressional employees, which is less significant than those 

other ones. And what bothers me about those last examples is that 

it goes directly to the power of the purse. And we have seen over 

and over again courts saying do not worry, you have the power of 

the purse. And this Administration is now directly challenging that 

and saying we can take money that was dedicated for one purpose 

and give it to an unspecified disallowed purpose, and that challenges the very rock foundation of the Congress. 

Mr. HOLDING. Mr. Rosenkranz, do you want to add any to this 

list of—I have got four. 

Mr. ROSENKRANZ. Well, I agree with all the items on that list. 

You know, a recent D.C. Circuit opinion spoke of the Nuclear 

Regulatory Commission refusing to make a decision about Yucca 

Mountain. That is quite a striking example. That is the example 

where Judge Kavanaugh—the Judge Kavanaugh quote came from. 

And the other example that I really want to keep returning to 

is the IRS-targeted enforcement. So to my mind, taking care that 

the laws be faithfully executed—the core of that requirement is 

nondiscriminatory enforcement. 

Mr. HOLDING. Mr. Lazarus, do you want to add any to this? Perhaps not. 

Mr. Cannon, would you like to add any to this? 

Mr. LAZARUS. I would like to ask isn’t the Nuclear Regulatory 

Commission—— 

Mr. HOLDING. I am going to reclaim my time, Mr. Lazarus. 

Before I go to you, Mr. Cannon, I want to use my last minute 

with Mr. Rosenkranz. Mr. Rosenkranz, you said that in extreme instances, impeachment would be appropriate to address one of these 

transgressions. We used the example of declaring war without congressional authorization. Say, on a scale of 1 to 10, that being a 

10 as necessitating impeachment proceedings, we have reeled off 

six instances where the President has exceeded his constitutional 

authority. I would add a seventh in there with what he is doing 

with our drug laws and the mandatory minimums and the insistence that our prosecutors not charge all of the relevant facts. 

Out of any of these seven, which ones rise to being the most egregious and would any of them trigger what you would think impeachment to be appropriate? 
95 

Mr. ROSENKRANZ. Well, I would not want to opine on quite what 

the impeachment line ought to be, but I think this body should 

think about a pattern, if they see a pattern and particularly if they 

see willful conduct. That is really the most egregious thing a President can do is willfully violate the Take Care Clause or display a 

pattern of disregard for a constitutional prohibition. So that is 

what I think the Committee should keep their eye on. 

Mr. HOLDING. Mr. Chairman, I yield back. 

Mr. GOWDY. I thank the gentleman from North Carolina. 

The Chair would now recognize the gentleman from Georgia, Mr. 

Collins. 

Mr. COLLINS. Thank you, Mr. Chairman. 

I have sat here and I have listened and I have listened in the 

back. I listened to both sides. The thing that just disturbs me more 

about this hearing probably—Congressman King said it was one of 

the most interesting hearings that we have done and one of the relevant hearings. I am not going to disagree with that. 

But I think for me it actually brings out one of the most disturbing hearings that we are having to have. And I think it is a 

progression issue here. And I am not going to be Republican or 

Democrat. It has happened more in the last 15 to 20 years. I think 

this is a progression of executives that both Republicans and Democrats have used really in some ways, pushed that boundary, 

stretched that boundary, and I think in the case of this, the President now has outright stepped over those boundaries. 

And we can have legal discussions up here all the time. But the 

problem is from where I come from up in northeast Georgia people 

do not get it. They look at a government. They look at an executive. 

They look at what is going on right now, and they just basically 

say this is not the way it is supposed to work. You can go back to 

schoolhouse rock. You can go to civics class. You can do whatever, 

and you can be graduated law professors. But at the same point, 

if you cannot communicate it to the people who have to live under 

the situation, then there are mass problems. And I believe there is 

a right to have a mass problem right now. 

We have talked about the power of the purse. I have talked all 

session ever since I got up here about I believe truly that this institution has got to matter again. It is Article I. We have talked about 

Article III a lot. We talked about Article II a lot, but it is Article 

I. Congress has to matter again, and that means that we have to 

take seriously our role of budgeting. We have to take seriously our 

role of legislating, but also holding accountable when we are being 

bypassed. And that is a concern. 

And we talked about using the power of the purse. I think that 

has been an issue that has been well trodden today. We have 

talked about elections, and I think that is an issue that has been 

discussed. 

But the other issue for me that is bothersome and you try to explain is what can you do. I am often asked this. You got to go up 

there and you just impeach him. Or you go up there. You just impeach the President. Or you go up there and you just cut funds off. 

You shut everything down. And it just becomes a blur. 

And now we have Mr. Lazarus—and I respect your right to a differing opinion than mine on most things here—to say that I believe 
96 

he has stepped over and you believe he has not. That is where we 

differ. 

And, Mr. Turley, we will agree on some things and probably not 

agree on others. But you made a statement that said, agree or not, 

it was not in the bounds of the Constitution. And I think that is 

interesting for us to talk about for just a moment because it comes 

back to what do we do besides getting our ‘‘act together,’’ if you 

would, as Congress. What can we do? Because standing is an issue 

that we are having. 

So I want to ask you just this question. Where do we go to begin 

that process of reclaiming our Article I, our constitutional role so 

that it is a three-legged stool and not right now a one and a half. 

Mr. TURLEY. Well, it is an excellent question. Despite my deepest 

concerns, I remain optimistic. I am a Cubs and Bears fan. So I 

have spent most of my life with unrequited desires. 

But it is as serious as you suggest, and there is a good reason 

why people cannot understand what is going on because we are 

acting outside the system. We have essentially taken the 

Madisonian system offline, and we are in this ad hoc 

improvisational world of constitutional law that is very, very dangerous. 

Where I disagree with my friend, Mr. Rosenkranz, is I am always 

leery about people who say the solution is elections. The Framers 

did not intend for elections to be the solutions to constitutional 

problems. They created a system of checks and balances to allow 

the system to correct itself because there are plenty of abuses. You 

can have majoritarian terror that would be just promulgated and 

continued through elections. 

Also, impeachment is not a good device for regulation. It is a 

very difficult thing. I testified at the Clinton impeachment hearings. It is a very difficult standard and is certainly not there as a 

substitute. 

I think that a hearing that this body should seriously consider 

is to have a hearing on Member standing. I have been writing 

about this for years. I have represented Members. If we had Member standing, if Members could go to court and raise unconstitutional acts, much of these problems would go away because we 

have been guaranteed review. Much of what we have seen from the 

White House in my view is based on the assumption, not necessarily a bad one, that nobody will be able to call them to account. 

Mr. COLLINS. I believe you are right on that. 

You know, you said were an optimist. I am too if you have 

watched some of our sport teams lately in Atlanta. But I am an optimistic realist, and I do not get on the plane to come to Washington, D.C. I still look at this capital and I still believe it matters. 

I still believe that we are a shining light for the world. But I want 

to spend all of my time, as best I can, to bring us back to a balanced checks and balance system in which Congress’ Article I authority is respected and honored and we also have the system that 

most people in this country grew up understanding. And I think 

that is what this hearing ultimately is about, is the respect of the 

people who sent us here, and we have got to continue that. 

Mr. Chairman, I yield back. 

Mr. GOWDY. I thank the gentleman from Georgia. 
97 

The Chair would now recognize the gentleman from Florida, Mr. 

DeSantis. 

Mr. DESANTIS. Thank you, Mr. Chairman. 

Mr. Lazarus, if Congress passes a statute that applies to whatever parameters you want, can the President enlarge the parameters of the statutory text and apply it to areas outside that the 

statute contemplated? 

Mr. LAZARUS. No. 

Mr. DESANTIS. Okay, because it is interesting because in 

your—— 

Mr. LAZARUS. Let me just qualify that. This is an abstract question and it really depends on how the statute is worded. 

Mr. DESANTIS. I understand that and I will give you a chance to 

respond because you cite bureaucrats within the Administration to 

justify some of the President’s conduct, but you actually do not cite 

any quotes from the President himself justifying his conduct. And 

I think it was interesting with this most, quote, legislative fix for 

grandfathered plans, here is what the President said. Already people who predate the ACA can keep those plans if they haven’t 

changed. That was already in the law. That is what is called a 

grandfather clause that was included in the law. Today we are 

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. In other words, Obamacare has a grandfather clause. Anything after the enactment of Obamacare is illegal 

unless it meets the statutory requirements. So what the President 

is saying is he is extending a grandfather clause to cover plans beyond what the statute contemplates. So you think that that is appropriate. 

Mr. LAZARUS. I think you are making a good point. I think that 

it is appropriate if it is temporary. 

Mr. DESANTIS. And, oh, by the way, let me just say. We passed 

in the House a bill that would have grandfathered in the plans, 

and I think that we should do that. 

Mr. LAZARUS. What I meant to say was I think it is appropriate 

as a temporary measure if it is necessary to—— 

Mr. DESANTIS. It is directly contrary to the statute. The whole 

point of Obamacare was that you needed to force people into these 

exchanges. 

What about this idea? If a political environment is tough, would 

that be a reason to delay a law or grant a waiver to a law if you 

cite the political environment as your justification? 

Mr. LAZARUS. I think that would be—— 

Mr. DESANTIS. Congress is not doing what I want. I may suffer 

political damage. So I am going to do it anyway. 

Mr. LAZARUS. Clearly that would not be appropriate. 

Mr. DESANTIS. Well, because I think in your testimony—and you 

did make some good points. I will give you that. You did not cite 

the President’s stated justification for delaying the employer mandate. He was asked about it at a press conference. He said, you 

know, in a normal political environment, I would pick up the 

phone, call the Speaker, say, hey, this is a tweak that does not go 

to the essence of the law, and we would delay it for a year. But 
98 

there is not a normal political environment when it comes to 

‘‘Obamacare’’ is what he said. 

Now, to me, I think that that is totally outlandish of an explanation. It is even more outlandish because Congress, by the time 

he made that statement, had already passed a bill to delay the employer mandate precisely for the reason that the President suggested. 

Let me ask you one more question. Professor Turley, I really appreciate your written testimony, and you cite a lot of examples of 

the Founding Fathers. 

And, Mr. Lazarus, you made the point that, hey, the Take Care 

Clause does not mean what the rest of these guys say. Original understanding—the Founders understood it. But you did not cite any 

actual Founding Fathers. So can you cite for me a Federalist 

Paper? Hamilton wrote a number on executive power. Can you cite 

a Constitutional Convention debate, a ratifying convention debate, 

early practice in the republic that would substantiate your assertion that that is consistent with the original understanding? 

Mr. LAZARUS. Yes. 

Mr. DESANTIS. Jefferson? 

Mr. LAZARUS. There is very—— 

Mr. DESANTIS. Madison? 

Mr. LAZARUS. No. There is very little discussion—— 

Mr. DESANTIS. Hamilton? 

Mr. LAZARUS. There is very little discussion, but what there 

is—— 

Mr. DESANTIS. All right. So you are making an assertion that is 

not justified by the historical facts. I understand the theory that 

you are positing, but I think it is tough. You got to back it up. And 

I think Professor Turley backed up what he was trying to say. And 

so I am asking you who would you point to. 

Mr. LAZARUS. Can I finish? 

Mr. DESANTIS. Well, I want you to answer the question. 

Mr. LAZARUS. The answer to the question is that during the Constitutional Convention—this is what I said in my testimony and 

this is what the basis of the interpretation is, and I think it is 

widely accepted. Originally what became the Take Care Clause did 

not have ‘‘faithfully’’ and did not have ‘‘take care’’ in it. It just said 

that the President shall carry into execution the laws. As the debate went forward, that got changed and ‘‘faithfully’’ and ‘‘take 

care’’ were added. 

Mr. DESANTIS. I understand that. 

Mr. LAZARUS. What I said what that clearly shows—and I think 

what scholars on all sides have accepted—that shows that the 

President is to faithfully, in good faith—— 

Mr. DESANTIS. Let me reclaim my time because you have made 

that point. That was not my question. My question is about show 

me something I can go where Hamilton is saying this or not. You 

are talking about—— 

Mr. LAZARUS. This is even more powerful. It does—— 

Mr. DESANTIS. And I think Mr. Turley’s point about the language 

is more correct. 

But let me just say one other thing. 
99 

Mr. LAZARUS. This is the actual legislative record, and it is 

more—— 

Mr. DESANTIS. So the text matters there but it does not matter 

with the ACA because you are saying the purpose is different from 

what the text actually says. 

But I do think, though, the idea of when you are talking about 

Mr. Cannon’s argument, about, oh, nobody in Congress—they did 

not intend for this subsidy to do—the idea that we know what Congress intended on a 2,600-page bill that many Members did not 

read, much less understand—there were Members here swearing 

you could keep your plan, you could keep your doctor. And now we 

have Members of Congress running around saying, oh, my gosh, I 

did not know you would not be able to keep your plan, your doc. 

So the idea you are going to rely on that over the text of the actual 

statute to me I do not think—I am a textualist—I would do that 

anyway. But with this health care law I think of any law, surely 

you cannot point to what Congress intended and to these intricate 

provisions because many of them did not read or understand it. 

And my time is up and I will yield back. 

Mr. LAZARUS. But it is Mr. Cannon who is claiming that it was 

the intention. It was intentional and purposeful of Congress to construe the law in the cramped way in which he does. 

Mr. GOWDY. I thank the gentleman from Florida. 

The Chair would now recognize the gentleman from Texas, Mr. 

Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

And I thank all of our witnesses. It is good to see some of you 

back. I do not remember seeing all of you. Otherwise, it would be 

all of you. 

If you would suppose with me that you are in a town hall back 

in a congressional district and you had an elementary school child, 

student, stand up and ask this question, I would like to know how 

each of you would answer this child’s question. What right does the 

House of Representatives have to pick and choose what part of 

Government gets funding? What is your response? We will start 

with Professor Turley. 

Mr. TURLEY. I am sorry. The last part of the question? 

Mr. GOHMERT. What right does the House of Representatives 

have to pick and choose what part of Government gets funded? 

Mr. TURLEY. Well, I think the answer is clear. In this sort of orbital world, these three branches are placed by the Framers. The 

key power given to Congress and the House of Representatives was 

the power of the purse, to control the funds. What is alarming 

about the situation is that even that power is being challenged and 

being marginalized. 

Mr. GOHMERT. Professor Rosenkranz? 

Mr. ROSENKRANZ. Article I, section 8 gives you the power to decide what you want to fund and what you do not want to fund. 

Mr. GOHMERT. And, Professor Lazarus? 

Mr. LAZARUS. Professor Rosenkranz took the words right out of 

my mouth. 

Mr. GOHMERT. Article I, section 8? Okay. 

Mr. CANNON. Article I, section 8, along with the Senate. 
100 

Mr. GOHMERT. Mr. Chairman, I would ask that we provide a 

copy of the answer to this question to Senate Leader Reid since he 

asked that question. 

Now, with regard to Libya, the President said he did not need 

to come to Congress in order to get our authority to start bombing 

in Libya. And that was a concern to some of us. He had been asked 

by the Organization of the Islamic Conference, all 50 or 57 states, 

whatever they got, 50, 57, and also by some of the NATO allies 

that use Libyan oil. So he did not need Congress’ approval because 

he had those requests. 

He was initially prepared to help the Syrian rebels, which al 

Qaeda had become, not initially, but they have become the most 

profound part, and he was ready to start bombing the Syrian leader that Hillary Clinton had called a reformer. Initially he planned 

to do that without Congress’ consent. He did not think he needed 

Congress’ consent, but obviously once there was a lot of political 

pushback, he threw it to Congress and let them decide. 

But I am curious from each of you. What gives the President the 

authority to order bombing, even if he promises to limit the numbers of people that he will kill? What gives him authority to go 

start bombing a country? Obviously we would consider it an act of 

war if any country started dropping bombs over us. But what gives 

him that authority? I am curious, from each of you. 

Mr. TURLEY. Well, first of all, I think it is a great question because I was a little confused when Mr. Lazarus says no one has 

accused President Obama of being inclined to engage in war without a declaration. I was in court with Members of this Committee 

saying exactly that in the Libyan war conflict. And what disturbed 

us is that the White House came back and said the reason we do 

not need a declaration of war is because the President alone defines what a war is, and he is simply saying this is not a war. 

And when we talk about the dangers, this is a danger of a different kind. It is not only a danger of separation of powers, obviously, and a direct violation of the express language of the Constitution, but this Administration through these acts and through 

the large number of drone attacks is returning the world to a state 

of nature. We are taking down critical international legal principles 

that have governed this world, that have respected territorial limitations. 

I just spoke to the NATO parliamentarians, and I told them you 

will loathe the day that you endorsed the U.S. position that they 

can take unilateral action when somebody vaporizes someone in 

the middle of London. 

Mr. GOHMERT. My time is about to run out. So let me morph that 

into this question to each of you and get your answer. 

Now, the President had ordered Anwar al-Awlaki killed by a 

drone strike in Yemen, an American citizen, without any due process as we have come to know it. I asked the question in this room 

at another hearing, how far does that order extend? I mean, if alAwlaki came back to Capitol Hill and led prayers, as he had before, 

of congressional staffers, was that order still good? I wanted to 

know in case a drone strike was still on. 

What authority do you think the President has to order American citizens killed in other countries in which we are not at war 
101 

or in the U.S.? My time is up, but if I can get answers to that question from each of you. 

Mr. GOWDY. As quickly as you can, given the subject matter. 

Mr. TURLEY. I do not believe he has authority to do that. They 

have cited things like hot pursuit, which makes no sense. It is not 

an imminent threat. I believe the President’s kill list policy is flagrantly and dangerously unconstitutional. 

Mr. ROSENKRANZ. I think it is quite a difficult question, but the 

Obama administration’s Office of Legal Counsel memo on this is 

certainly quite strained. So they are reaching for analogies and 

analysis that is quite unconvincing I would say. 

Mr. GOHMERT. Professor Lazarus? 

Mr. LAZARUS. I am very, very far from an expert on these matters. But I would just offer one observation and that is I do not 

really see why the American citizenship issue in the case that the 

Congressman is referring to is all that significant. I think that if 

a Nazi general happened to have been an American citizen, it 

would not alter the way we could deal with him militarily. But 

there are weighty questions about the President’s authority to implement the drone program. I do not really have an expert view on 

that. 

Mr. GOHMERT. Briefly, Mr. Cannon. 

Mr. LAZARUS. I think it has been very effective militarily, so that 

is a good thing. 

Mr. CANNON. I will just associate myself with Professor Turley’s 

comments. 

Mr. GOHMERT. Okay. Thank you very much. I appreciate you all’s 

testimony. 

Mr. GOWDY. I thank the gentleman from Texas. 

The Chair would now recognize another gentleman from Texas, 

Mr. Farenthold. 

Mr. FARENTHOLD. Thank you very much, Mr. Chairman, and I 

appreciate the opportunity to ask some questions here. 

I am going to ask for you all’s help in answering what is probably the number one question I get at town hall meetings and people who are running up to me at the grocery store when I am back 

home in Texas. And it goes something like this. In light of—and 

you can insert whatever you want, Benghazi, Fast and Furious, the 

IRS targeting of advocacy groups, NSA overreach, if you like your 

health care, you can keep it, varying the terms and waivers of 

Obamacare. The number one question I get is what can you do 

about it. We sent you to Congress to do something about this. 

And I have listened today, and I have heard we could enact new 

laws. Well, that does not work if they cannot get through the Senate and the President himself will not sign it. We can use the 

power of the purse. Well, that is pretty much dead. We have heard 

testimony about that. And in the era of continuing resolutions, we 

do not have a lot of options here. Well, we could go to the court. 

We have heard about the standing issue. Also even when there is 

standing, a delay tactic leaves you—probably the President will be 

termed out by the time any of these court decisions are held. We 

talked a little bit about elections. I think Chairman Issa brought 

up the issue with the IRS scandal interfering with elections, that 

is kind of off the table. And I will admit my party did not do as 
102 

well as we probably should have in the other election, but we did 

do well in the 2010 election when in historic numbers Congress 

changed. And then we have also talked about the ‘‘I’’ word, impeachment, which again I do not think would get past the Senate 

in the current climate. 

Am I missing anything? Is there anything else we can do? Mr. 

Turley? 

Mr. TURLEY. Well, it does paint a dire picture. As we have said 

before, for years I have encouraged Members to consider Member 

standing as a standalone issue, of trying to find a way to establish, 

either constitutionally or through statute, to allow Members of 

Congress to have—— 

Mr. FARENTHOLD. Okay. So there is one fix to the court system. 

But you are still not going to get that through in any amount of 

time. 

Mr. TURLEY. Yes. To me the most troubling thing is—I just published a Law Review article on recess appointments, which I also 

testified on. 

Mr. FARENTHOLD. We forgot that one in the list. 

Mr. TURLEY. What is fascinating about it is that because Congress has been stripped of more and more of its power, it has actually put more emphasis on appointments as a way of controlling 

the White House. 

Mr. FARENTHOLD. Have we been stripped of it or have we inadvertently given it up? 

Mr. TURLEY. I am afraid it is either by acclaim or it has been—— 

Mr. FARENTHOLD. I have to ask the rest of the panel. Mr. 

Rosenkranz? 

Mr. ROSENKRANZ. Well, I have said it before. I am sorry to say 

that the ultimate remedy for this sort of thing is elections, and democracy is slow and messy. But at the end of the day, the right 

answer for this Committee is to hold hearings like this, to publicize 

what it takes to be violations of the Constitution and for that to 

become an election issue. 

Mr. FARENTHOLD. Mr. Lazarus, I realize you do not think we 

have the problem with the President a lot of my constituents have. 

But have I missed anything on a remedies against any rogue— 

again, I use the term in broad, general—not pointing to anybody 

in particular—a rogue President? 

Mr. LAZARUS. I think that is, with all due respect, a gross misrepresentation of this President. 

Mr. FARENTHOLD. I was not pointing to this President. A hypothetical rogue President. 

Mr. LAZARUS. Well, we know. We had a rogue President who was 

driven from office and who would have been impeached and convicted had that not happened. Actually that result was guaranteed 

in this very room when the ranking Republican Member of the Judiciary Committee voted to impeach Nixon. So, sure—— 

Mr. FARENTHOLD. Mr. Cannon? 

Mr. CANNON. Well, I think what Professors Turley and 

Rosenkranz said is accurate or would help Member standing. Yes, 

you have to win elections, but something that has not been mentioned is getting Democrats to care about this issue when there is 
103 

a Democratic President and getting Republicans to care about 

these issues when there is a Republican President. 

Right now, I do not know if anyone who is watching this at home 

has noticed, but all the Democratic Members of the Committee 

have left room. I think they left about 20 minutes. We are 3 and 

a half hours into this hearing. They are obviously not as interested 

in this as—— 

Mr. FARENTHOLD. And finally, I think one of our problems here 

is we have a President right now who is not willing to work with 

Congress. We just had a Democrat walk in. 

Mr. CANNON. I retract my statement. My apologies. 

Mr. FARENTHOLD. I have talked to a constituent who worked for 

the Bush White House whose job it was to lobby with Congress, 

and I have met with somebody from the Obama administration exactly twice in 3 years. And I do think it is the President’s duty to 

engage. I had a question on that, but I am out of time. But I do 

think there is a disappointment with the President not being engaged. 

Mr. Cannon? 

Mr. CANNON. If I may. Republicans are very concerned about executive power when the executive is a Democrat. Democrats are 

very concerned about executive power abuses when the executive 

is a Republican. I think the Members of each party need to care 

about these issues a lot more when someone from their own party 

occupies the White House and not just when someone from the opposite party—— 

Mr. FARENTHOLD. Thank you. I see my time has expired, Chairman Gowdy. I will give it back to you. 

Mr. GOWDY. I thank the gentleman from Texas. 

The Chair would now recognize the gentleman from Tennessee, 

Mr. Cohen. 

Mr. COHEN. Thank you, sir. 

I have obviously missed some of this hearing, although I have 

caught some of it on the magic of video television. And I was interested the gentleman, Mr. Cannon, had mentioned the possibility of 

impeachment or some impeachable offenses. Is that accurate? 

Mr. CANNON. I cannot remember if I brought that up. I may 

have. 

Mr. COHEN. And in what context would you have brought that 

up? 

Mr. CANNON. I think in response to a question. I am not sure if 

I did or if someone else—— 

Mr. COHEN. Can anybody on the panel refresh his memory? 

Mr. CANNON. I think what I brought up was a constitutional 

amendment convention. I do not think I brought up impeachment. 

I agree that it is certainly a tool that the Congress can use to restrain the executive. 

Mr. COHEN. Constitutional amendment. You suggested we should 

have a convention? 

Mr. CANNON. The question I was asked was—I was asked about 

ways the people can restrain the executive, and I offered that as 

one way. 

Mr. COHEN. That has never been done before. Has it? 

Mr. CANNON. Not that I am aware of, no. 
104 

Mr. COHEN. Anybody else on the panel have any thoughts about 

impeachment? 

Mr. ROSENKRANZ. I mentioned impeachment earlier. We have 

been asked several times questions about possible remedies if we 

find that a President is behaving lawlessly. I have not said that 

this President has or that these examples rise to that level. But the 

ultimate constitutional check on a lawless President is impeachment and ultimately election. 

Mr. COHEN. Right. That is the check. But nobody has suggested 

that the President has certainly not committed any impeachable offenses, I presume. Nobody here thinks that. Is that right? Mr. Cannon? 

Mr. CANNON. Well, I do not know. As Professor Rosenkranz mentioned, I think an important element is that whatever crimes or 

misdemeanors he has committed were committed knowingly and 

whether there is a pattern of abuse of his office. And in my testimony, you will see that I actually lay out a pretty consistent pattern whereby President Obama has ignored and tried to rewrite 

portions of the Patient Protection and Affordable Care Act. And I 

think that the most egregious of these is the one where he is implementing the law in a way such that he is taxing and borrowing and 

spending, over the next 10 years, $700 billion that this Congress 

never authorized. 

Now, you may disagree with my interpretation of the law. I know 

Mr. Lazarus does. But I think that you and I and Mr. Lazarus 

would all agree that if a President were trying to tax and borrow 

and spend $700 billion without congressional authorization, that 

might be an impeachable offense. 

Mr. COHEN. Does anybody here think any actions of the Bush administration and going into Iraq without actual knowledge of weapons of mass destruction or anything else would have been an impeachable offense? Mr. Lazarus, you seem to be nodding. 

Mr. LAZARUS. No. Disregard the nod behind the curtain or in 

front of the curtain. I was very upset by that, but whether it is impeachable is a political decision that Congress would have to make. 

Mr. COHEN. Mr. Turley? 

Mr. TURLEY. Well, the war powers issue does come closest for me 

for both President Obama and President Bush. The reason I do not 

think it rises to that level is because court decisions have made 

this so much of a mess, first of all, by judicial passivity in not reviewing it and by the use of historical practice. So I think it is very 

hard to maintain an impeachable offense when you have that degree of ambiguity. I do not believe that ambiguity is found in the 

Constitution. I believe that President Obama violated the Constitution in Libya, for example. But because of that history and precedent, they can claim that were acting on a reasonable interpretation of the law. 

Mr. COHEN. Thank you. 

Mr. Gowdy, I congratulate you, I guess, on South Carolina’s victory, and I yield back the balance of my time. 

Mr. GOWDY. Thank you, Mr. Cohen. I have got to be careful how 

I respond to that since they are both State schools. I thank the 

gentleman from Tennessee. 
105 

I would now recognize another gentleman from Texas, former 

judge, Judge Poe. 

Mr. POE. I thank the Chairman. 

I disagree with you, Mr. Cannon, on that Republicans are only 

concerned about executive abuses when Democrats are in control. 

I personally do not like any executive abuses no matter who the 

President is. And I think our executives have gotten out of control 

over the last several executives, not to mention the judicial branch 

which I served in for 22 years. I think it has exceeded its boundaries of the Constitution. 

But we are talking about the executive branch. In the Constitution, if I remember correctly, the executive branch is mentioned 

second. The first one mentioned in the Constitution is the legislative branch. That would be Congress. Third is the judicial branch. 

My understanding of the writers of the Constitution—they put the 

most important one first and least important last because we are 

elected and the guys on the other end are appointed forever. In the 

middle is the executive branch. 

The President said we are not a banana republic. There are a lot 

of definitions to banana republic, but my view of a banana republic 

is a lawless country. We are proud of the fact in the United States 

we are a country of laws not people. But yet, we are in a situation 

where the law means different things to different people and it is 

not enforced. 

And like many have said here, back home in Texas they just do 

not understand where the President gets the authority to do some 

of these things without congressional intervention. I agree with the 

people that I represent, and they are from both parties. They are 

not just Republicans. They are saying, well, how can he do that? 

If I hear that once, I hear it a hundred times when I go home on 

weekends. How can he do that and what are you going to do about 

it, Congressman Poe? I get asked that a lot. 

We have had some discussion about those things. We know subjects. There are a lot of subjects when people question where the 

President has authority. But let’s spend one moment on one issue. 

Obamacare, according to the Supreme Court, is a tax. The President has used the law and has said that I am going to postpone 

that tax for this group first, big business. Then I am going to postpone the tax for 6 weeks for individuals, and then I am going to 

postpone the tax a year for small businesses. He is postponing 

taxes. Since I have no life, I have read Obamacare. I do not see 

that in there where the President—we gave him the authority to 

postpone a tax, but he does it. 

Now, if he has the legal authority to do that, which I doubt—but 

he used that authority—what is to prevent him from just going 

looking at the IRS Code, which is a mess. I do not know any American that thinks the IRS Code is a good bill, but rather than fix 

it, we just make it bigger every year. So the President goes to the 

IRS Code and says, well, this group of businesses—they are just 

having a bad year like green businesses, or we could use the energy companies on the other end, the oil and gas industry. I am 

just going to postpone them paying income tax for a year. Why? Because I said so. Or I will take this group and do something similar, 
106 

tweak their tax. Rather than paying 38 percent, they are going to 

just pay 20 percent for the next year. 

It seems to me if he has the legal authority to amend taxes, 

which the Affordable Care Act is a tax according to the Supreme 

Court, what is to prevent him from just amending any tax to his 

liking? Mr. Turley, weigh in on this, if you would, Professor. 

Mr. TURLEY. Thank you, Congressman. 

I have to agree. First of all, on your first remark about Article 

I, as I have said before, it is true that they are all equal branches, 

but the Framers spent the most time on Congress because it is this 

thumping heart of the Madisonian system. It is where the magic 

happens, and that magic is to take those factional interests, those 

interests that destroyed countries, and turn them into a 

majoritarian compromise. 

And when we get to the issue of taxes, as you have raised, that 

is one of the most divisive issues facing the country. And so when 

someone comes before Congress and says I want my group to be excluded, it obviously produces a great deal of heat from people saying, well, how about my group. How long should this apply? It is 

perhaps the most divisive issue that is raised in Congress, and that 

is precisely why it was given to Congress so that those types of 

issues would be subject to this transformative process of legislation. 

Mr. POE. So do you believe that that would be an unlawful constitutional act if the President started amending the tax code on 

his whim? 

Mr. TURLEY. Yes, I do. 

Mr. POE. Let me ask you one other question, if I may, Mr. Chairman. 

You mentioned remedies. What about the remedy of a mandamus? Would a mandamus remedy lie in any situation where 

Congress thought the executive had not enforced the law? 

Mr. TURLEY. Mandamus can be very difficult in some of these if 

you are trying to use mandamus against the President, but you can 

challenge some of these decisions, for example, the HHS decisions 

as violating APA, for example. You can go with—if you have standing to do so. Those are obviously a long process. 

And this is one of the things where I tend to get off the train 

with at least one of my colleagues. This is not an APA issue. This 

is a constitutional issue. It is a President usurping the authority 

of Congress. And to say that this is just something that we leave 

to agencies I think radically misunderstands the severity of the situation. 

Mr. POE. Thank you, Mr. Chairman. I yield back. 

Mr. GOODLATTE [presiding]. I want to thank all of our witnesses 

for an excellent hearing, a great discussion on what I think is one 

of the most important issues facing our country today. 

I want to also thank the Members for a very strong participation 

in today’s hearing, and that means the witnesses had to stay 

maybe a little longer than they had originally thought they would, 

but that only means that you have had the opportunity to talk 

through and think through and debate this issue even more extensively. So I thank all of you for your participation. 

This concludes today’s hearing. 
107 

And without objection, all Members will have 5 legislative days 

to submit additional written questions for the witnesses or additional materials for the record. 

And this hearing is adjourned. 

[Whereupon, at 1:36 p.m., the Committee was adjourned.] 

(109) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Supplemental Material submitted by Michael F. Cannon, 

Director of Health Policy Studies, Cato Institute 
110 

TABLE OF CONTENTS 

Interest of the Amici Curiae ......... .................................................................................... 1 

Summary of Argument ..................................................................................................... 2 

Argument ........................................................................................................................... ) 

1. The PPACA Authorizes Premium-Assistance Tax Credits Only in States 

that Establish Their Own Exchanges ............................................................... 3 

A. The Text's Meaning Is Plain ................................................................ ) 

B. There Is Widespread Agreement that the Text's Meaning Is Plain ..... 5 

C. The PPACA Precludes IRS's Deviation from the Plain Meaning 

of the Text .......................................................................................... 7 

1. The Purported Equivalence Between State and Federal 

Exchanges.. . .. 7 

2. Reporting Requirements ... 8 

II. The Legislative History of the PP ACA Supports the Plain Meaning of the 

Statutory Text ............................................................................................... 10 

A. The Legislative History Demonstrates That, Consistent with the 

Statutory Text's Plain Meaning, Congress Intended Subsidies To 

Induce the States To Establish Exchanges .. 10 

B. Congress Routinely Conditions Federal Benefits On State Action 

To Induce the States To Carry Out Federal Priorities ........................ 22 

1. Medicaid... ......................................................... 23 

2. State Children's Health Insurance Program ........................... 24 

3. Exchanges .. ..25 

4. Medical Malpractice Liability Reform. ..26 

Employer Mandate 27 

6. Health Coverage Tax Credit. ..27 

7. Health Savings Accounts ....................................................... 28 

8. Small Business Tax Credits .................................................... 28 

9. A "Public Option" ................................................................. 29 

Conclusion ...................................................................................................................... 29 
111 

TABLE OF AUTHORITIES 

Rml'eI11'. Georgetmvn Unil'. Hosp., 488 U.S. 204 (1988) ................................................. 6 

Brungart v. BellSouth i'elecommunications, lnc., 231 F.3d 791 (11th Cif. 2000) ........... 30 

Nai'l Fed'n of Indep. Hils. v. Sehelius, 132 S. Ct. 2566 (2012) ............................ 23, 24, 29 

New York 1'. United States, 505 US. 144 (1992). ..22 

Printz v. United States, 521 US. 898 (1997) .................................................................. 22 

Statutes and Regulations 

26 U.S.c. § 35 ................................................................................................................ 27 

26 U.S.c. § 36B (PPACA Section 1401). ..passim 

26 USC § 223 ................................................................................................................. 28 

42 U. S. C. § 1396c ............. ......................................................... 23 

42 US.c. § 18024 (PPACA Section 1304) .................................................................. 4,7 

42 US.c. § 18031 (PPACA Section 1311) ........... .................................................. passim 

42 US.C § 18041 (PPACA Section 1321). .4,5,7,8, 19 

42 US.c. § 18043 (PPACA Section 1323) ...................................................................... 7 

42 USC § 18071 (PPACA Section 1402). ..4 

American Taxpayer Relief Act of2012, Pub. L. No. 112-240 (2012) .. ..29 

Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 

(2010) 8, 18, 19 

Patient Protection and AtIordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 

(2010) .................................................................... .................................................. pClSSim 

45 C.PR 155.20 .......................................................................................................... 4, 6 

ii 
112 

Other Authorities 

Affordable Health Choices for America Act, HR. 3962, Illth Congo 

(1 st Sess. 2009) .............. . ................................................... 16, 27 

Affordable Health Choices Act, S 1679, 111 th Congo (2009) 14,26,27 

America's Healthy Future Act of 2009, S. 1796, III th Congo 

(1 st Sess. 2009) .............. .................................. 12, 14, 16, 23, 26 

Carrie Brown, Nelson: National Exchange a Dealbreaker, Politico (Jan. 25, 2010). ..13 

The Commonwealth Fund, The Children's Health Insurance Program Reauthorization 

Act: Progress After One Year, States in Action (May 2010) ........................................... 25 

Congo Budget Office, The Budget and Economic Outlook 

Fiscal Years 2013 to 2023 (2013) .... ......................................................... 24 

Congo Budget Office, Updated Estimates for the Insurance Coverage Provisions of 

the Afl'ordable Care Act (March 13, 2012)... ......................................................... 24 

Congr. Res. Serv., Enacted Laws that Repeal or Amend Provisions of the Patient 

Protection and Affordable Care Act (ACA); Administrative Delays to ACA's 

Implementation, Memorandum to Hon. Tom Coburn (September 5,2013), 

www.coburn.senate.gov/publiclindex.cfm?a=Files. Serve&File _id=b8e7a876-ee 12-

477f-8c62-a9dd9294f537 ............................................................................................... 29 

Congr. Res. Serv., Health Coverage Tax Credit (January 5, 2011), 

http://www.taacoalition.com/sites/defaultifiles/HCTC.pdf ............................................. 28 

Congr. Res. Serv., Health Coverage Tax Credit Offered by the Trade Act of 2002 

(January 31, 2008), http://wlstorage.netifile/crsIRL32620.pdf ........................................ 27 

Congo Res. Serv., Legal Analysis of Availability of Premium Tax Credits in State and 

Federally Created Exchanges Pursuant to the Affordable Care Act (Jul 23, 2012) ... 5 

Congr. Res. Serv., State Children's Health Insurance Program (CHIP): A Brief 

Overview (March 18,2009), https://opencrs.com/documentlR40444/. ..25 

Congo Res. Serv., The Budget Reconciliation Process: The Senate's "Byrd Rule" 

(July 2, 2010) .................................................................................................................. 18 

Ctrs. for Medicare and Medicaid Servs., State Medicaid Dirctor Letter 11-001, ACA 

14 (Feb. 25, 20 II), http://downloads.cms.gov/cmsgov/archived-downloads/ 

SM DLidownloads/smd 11 00 1. pdf... . ........................................................ 25 

iii 
113 

Dep'ts of Labor, Health & Human Servs, Educ., & Related Agencies Appropriations 

for 2011, Hearing Before a Subcommittee on Appropriations, House of 

Representatives, Ilith Congo 171 (Apr. 21, 2010) ..................................................... 20-21 

Executive Committee Meeting to Consider Health Care Reform' Before the Senate 

Committee on Finance, Illth Congo 326 (2009), 

http://www.finance.senate.gov!hearings/hearing!downloadf?id~c6aOc668-37d9-4955-

86Ic-50959bOa8392.. ..15 

Executive Committee Meeting to Consider an Original Bill Providing for Health Care 

Reform: Before the S. Comm. on Finance, C-SPAN (Sept. 23,2009), http://www.cspanvideo.org/programI289085-4 ................................................................................... IS 

Ezra Klein and Sarah Klitl~ Obama's Last Campaign: Inside the White House Plan to 

Sell Obamacare, Wash. Post (July 17,2013) 21 

J. Lester Feder, HHS May Have to Get 'Creative' on Exchange, Politico (Aug. 16, 

20 II, 6:54 PM), http://www.politico.com/news/stories/0811/61513.html .. 22 

Jonathan H. Adler, Cooperation, Commandeering or Crowding Out? Federal 

Intervention and State Choices in Health Care Policy, 20 Kan. J. L. & Pub. Pol'y 199 

(2011) ... 1 

Jonathan H. Adler and Michael F. Cannon, Taxation Without Representation: 

The lllegallRS Rule to Expand Tax Credits Under the PPACA, 23 Health Matrix 

J. L. Med. I, 119 (2013) ......... .................................................. passim 

Julie Rovner, House, Senate View Health Exchanges Differently, Nat'! Public Radio 

(Jan. 12,2010) ................................................................................................................ 17 

Kate Nocera, Bill Clinton: Obamacare was 'Best Bill You Could have Passed', 

Politico (Feb. 8,2013), http://www·.politico.com/story/2013/02/bill-ciintonobamacare-was-best-bill-you-could-have-passed-87380.html ......................................... 20 

Kate Pickert, Max Baucus, Obamacare Architect, Slams Healthcare.gov Rollout, 

TIME.com (November 6,2013) ....... ......................................................... 10 

Letter from Henry J. Aaron, Senior Fellow, The Brookings Institution, et at. to Nancy 

Pelosi, Speaker of the House, et al. (Jan. 22, 2010), available at 

http://www.newrepublic.com!bl og/the-treatment/4 7 -health-poli cy -experts-i nc1 udingme-say-sign-the-senate-bill.. ..20 

Michael Cooper, G.O.P. Senate Victory Stuns Democrats, New York Times (January 

19, 2010), http://www.nytimes.comI201 0/01120/us/politicsl20election.html .................. 17 

NAIC Ltr. to Speaker Pelosi and Majority Leader Reid (Jan 6,2010) ........................... 12 

iv 
114 

NBC News, Watch Chuck Todd's full interview with President Obama (November 7, 

2013), http/lwww.nbcnews.com/video/nbc-news/53492840. ..30 

Otlice of Management and Budget, Fiscal Year 2014, availabfe at 

http/lwww.whitehouse.gov/sites/defaul tlfiles/omblbudgetlfy20 14/assetslbist. pdf . . .24 

Patients' Choice Act, S 1099, Illth Congo (I st Sess. 2009). ..26 

Patrick O'Connor & Carrie Brown, Nancy Pelosi's Uphill Health Bill Battle, Politico 

(Jan. 9, 2010) .. 12 

PPACA Implementation Failures: Answers from HHS Before the Energy and 

Commerce Comm., I 13th Congo (2013) ......................................................................... 29 

Reed Abelson, Proposals Clash on States' Roles in Health Plans, New York Times 

(Jan. 13,2010) ................................................................................................................ 13 

Remarks on Health Insurance Reform in Portland, Maine, 20 I 0 Daily Compo Pres 

Doc. 220 (Apr. 1,2010) ....... ......................................................... 20 

Robert Pear, U S. Otlicials Brace for Huge Task of Operating Health Exchanges, NY. 

Times (Aug. 4, 2012) 21 

S. Comm. Fin., America's Healthy Future Act, Chairman's Mark (Sept. 22, 2009) .. 12, 14 

S. Comm. Fin., Framework for Comprehensive Health Reform (Sept 8,2009). II, 14 

S. Rep. No.1 11-89 (2009) .................................................................................. 12, 25, 26 

Sarah Kliff, The Three Things We Learned from Today's Obamacare Update, Wash. 

Post Wonkblog, Nov. 19,2013 

http/lwww.washingtonpost.comlblogs/wonkbloglwpI20 131 1 1 I 19/the-three-thingswe-learned-from-todays-obamacare-updatel .................................................................. 30 

Senate Finance Committee, Jurisdiction, 

http/lwww.finance.senate.gov/aboutljurisdiction/. ..15 

Senate Health, Educ., Labor, and Pensions Comm., About the HELP Committee, 

http/lwww.help.senate.gov/aboutl 15 

Senator Max Baucus, Call to Action Health Reform 2009, Senate Finance 

Committee White Paper (Nov. 12,2008) ........................................................................ 11 

Senator Max Baucus, Description of Policy Options - Expanding Health Care 

Coverage: Proposals to provide affordable coverage to all Americans, S. Comm. Fin. 

White Paper (May 14,2009) ......... ........................................................... 11 

v 
115 

Shailagh Murray and Lori Montgomery, Deal on health bill is reached (December 20, 

2009), httpl larticles.washingtonpost.com/2009-12-20/politics/36866199 _1_ healthbill-gop-yields-government-insurance-option ................................................................. 19 

Small Business Health Options Program Act, S 2795, I 10th Cong. (2nd Sess. 2008) .. 11 

Small Business Health Options Program Act of2009, S 979, 

111th Cong. (I st Sess. 2009) ........... ......................................................... II 

Timothy Jost, Health Insurance Exchanges in Health Care Reform Legal and Policy 

Issues, Washington and Lee Public Legal Studies Research Paper Series (2009) ........... 27 

Timothy Jost, O'Neil1lnstitute Legal Solutions in Health Reform, Health Insurance 

Exchanges: Legal Issues (2009) ................................................................................. 13, 14 

Timothy Jost, State-Run Programs Are Not A Viable Option For Creating A Public 

Plan (Jun. 16,2009).. 28,29 

Timothy Jost, Yes, the Federal £xchanges Can Offer Premium Tax Credits (Sep. 11, 

2011), httpl Iwww.healthreformwatch.com/20 1 110911 lIyes-the-federal-exchange-canoffer-premium-tax-creditsl ............................................................................................... 6 

Tom Howell Jr., After Obamacare Health Exchange Deadline Passes, 26 States Opt 

In with Feds, Wash. Times (Feb. 16,2013), 

httpl Iwww.washingtontimes.com/newsI20 13/febl 16/after-obamacarehealthexchange-deadline-passes-26/?page=all.. ..21 

W&L Law's Jost Invited to Health Care Bill Signing Ceremony, Press Release 

(March 23, 2010), httpillaw. wlu.edu/news/storydetaiLasp?id=758 ................................ 13 

US. Rep. Doggett: Settling for Second-Rate Health Care Doesn't Serve Texans, My 

Harlingen News (Jan. 1 I, 2010) ...... .................................................... 17, 22 

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INTEREST OF THE AMICI CURIAE1 

Amici were among the first to consider the federal government's authority to extend 

subsidies for coverage purchased through federally established marketplaces. They have since, 

separately and together, published numerous articles, delivered lectures and testimony, and 

advised government officials on that issue and, in particular, on the regulation challenged here. 

They are the authors of the leading scholarly treatment of this issue, Jonathan H Adler and 

Michael F. Cannon, Taxation Without Representation: The Illegal IRS Rule to Expand Tax 

Credits Underthe PPACA, 23 Health Matrix l L. Med. 1, 119 (2013) 

Jonathan H. Adler is the Johan Verheij Memorial Professor of Law and Director of the 

Center for Business Law and Regulation at the Case Western Reserve University School of Law 

in Cleveland, Ohio. Professor Adler teaches courses in constitutional and administrative law, 

among other subjects, and is the author of numerous articles on federal regulatory policy and 

legal issues relating to health care reform, including Cooperation, Commandeering or Crowding 

Out? Federal Intervention and State Choices in Health Care Policy, 20 Kan. l L. & Pub. Pol'y 

199 (2011) 

Michael F Cannon is the director of health policy studies at the Cato Institute, a nonpartisan, non-profit educational foundation organized under section 501(c)(3) of the Internal 

Revenue Code, located in Washington, D.C., and dedicated to the principles of individual liberty, 

limited government, free markets, and peace. Cannon is a nationally recognized expert on health 

care reform. He holds masters degrees in economics (M.A.) and law and economics (lM.). 

1 Counsel for the amici curiae certifies that no counsel for any party authored this brief in whole 

or in part and that no person or entity other than the amici curiae or their counsel made a 

monetary contribution intended to fund the briefs preparation or submission. 
117 

SUMMARY OF ARGUMENT 

The Patient Protection and Affordable Care Act of 2010 ("PPACA" or "Act") provides 

"premium assistance tax credits" for the purchase of qualifying health insurance plans in health 

insurance Exchanges established by states under PPACA Section 1311,42 US.c. § 18031. The 

Internal Revenue Service rule purporting to implement those premium-assistance tax credits is 

contrary to the plain language of the PPACA and cannot be justified on other grounds. The rule 

exceeds the agency's authority and subverts congressional intent by subverting the balance 

Congress struck between the Act's competing goals. 

The PPACA mandates the creation of health insurance "exchanges" to regulate health 

insurance within each state; declares that "Each State shall. . establish" an Exchange; directs 

the federal government to establish one in states that do not; and offers health insurance 

subsidies to certain qualified taxpayers who enroll in a qualified health plan "through an 

Exchange established by the State under Section 1311." This language originated in the Senate 

Finance Committee, was clarified and strengthened thereafter in the Senate, and was approved 

by both chambers of Congress and the President. The legislative history of the PPACA is fully 

consistent with the plain text of these provisions 

The authors of the PPACA conditioned premium-assistance tax credits on states 

establishing Exchanges to induce state cooperation. Specifically, to avoid "commandeering" the 

states, the PPACA's authors offered premium-assistance tax credits as one among a number of 

financial inducements for states to perfonn this task for the federal government. Congress 

routinely conditions federal benefits to individuals-both via direct spending and the tax codeon their states' carrying out congressional priorities. Indeed, conditioning premium-assistance 

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tax credits on states' establishing Exchanges (and enacting other health insurance measures) is 

far from the largest tinancial inducement that Congress created for states in the PP ACA. 

Contrary to the clear lanh'llage and purpose of the statute, and without any reasoned basis, 

the IRS rule attempts to dispense premium-assistance tax credits in the 34 states that have opted 

not to establish an Exchange. Under the PPACA, those tax credits directly trigger penalties 

against employers and indirectly (but no less clearly) trigger penalties against individual 

taxpayers. The IRS rule therefore has the effect of triggering spending and imposing financial 

penalties that Congress never authorized. On that basis, the Plaintiffs' challenge to that rule 

should be sustained. 

ARGUMENT 

1. The PPACA Authorizes Premium-Assistance Tax Credits Only in States that 

Establish Their Own Exchanges 

The premium-assistance tax credit provisions of the Patient Protection and Affordable 

Care Act of 2010 clearly, consistently, and unambiguously authorize tax credits only in states 

that establish a health insurance "exchange" that complies with federal law . 

A. The Text's Meaning Is Plain 

As written, the PPACA only provides for the issuance of tax credits for the purchase of 

qualifying health insurance plans in Exchanges established by states under PPACA Section 1311. 

The tax credits for the purchase of qualifying health insurance plans are provided for under 

PPACA Section 1401, which creates a new section of the Internal Revenue Code-Section 36B. 

26 US.c. § 36B. This provision authorizes tax credits for each month in a given year in which a 

taxpayer has obtained qualifying health insurance through a state-run Exchange. As defined by 

Section 1401, a "coverage month" is any month in which the taxpayer is "covered by a qualified 

health plan. . that was enrolled in through an Exchange established by the State under section 
119 

1311." 26 US.c. § 36B(c)(2). The amount of the tax credit is also calculated with reference to 

either a qualifying health insurance plan "enrolled in through an Exchange established by the 

State under [Section] 1311 of the Patient Protection and Affordable Care Act" or the "second 

lowest cost silver plan offered through the same Exchange." 26 U.S.c. §§ 36B(b )(2)(A), 

36B(b )(3)(B). Indeed, every explicit or implicit reference or cross-reference to an Exchange in 

the tax-credit eligibility rules of Section 36B is to an Exchange "established by the State under 

Section 1311." 26 US.c. §§ 36B(b)(2)(A), 36B(b)(3)(B)(i), 36B(b)(3)(C), 36B(c)(2). 

Section 1311 further establishes the "requirement" that for purposes of that Section an 

"Exchange" be "a government agency or nonprofit entity that is established by a State." 42 

USc. § 18031(d)(I). To further erase any doubt, PPACA Section 1304 also defines "State" as 

"each of the 50 states and the District of Columbia." 42 U.S.c. § IS024(d). Accord 45 C.F.R. 

155.20 (defining "State" as "each of the 50 States and the District of Columbia"). The costsharing subsidies provided under Section 1402 are similarly limited, as that provision expressly 

provides that cost-sharing reductions are only allowed for "coverage months" for which the 

aforementioned tax credits are allowed. 42 US.c. § 18071(£)(2). 

Section 1311 makes no reference to federally facilitated Exchanges. Authority to create 

such Exchanges comes from a separate provision, Section 1321,42 U.S.c. § 18041. Specifically, 

if the State has not established its own Exchange under Section 1311; or if the State fails to have 

"any required Exchange operational by January 1, 2014"; or if the State "has not taken the 

actions the Secretary [of Health and Human Services] determines necessary to implement" the 

"regulations setting standards for meeting the requirements under [Title I] with respect to the 

establishment and operation of Exchanges (including SHOP Exchanges)[,] the offering of 

qualified health plans through such Exchanges; the establishment of the reinsurance and risk 

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adjustment programs under part V[,] and such other requirements as the Secretary detennines 

appropriate"; or if the State "has not taken the actions the Secretary determines necessary to 

implement ... the requirements set forth in subtitles A and C" of Title I; then Section 1321(c) 

requires "the Secretary shall 

PPACA § 1321. 

. establish and operate such Exchange within the State. 

Portions of the PPACA may not be models of clear legislative drafting, butthe provisions 

authorizing tax credits for the purchase of qualitied health insurance plans are abundantly clear. 

Tax credits are only authorized for qualifying coverage, and such coverage must be obtained 

through an Exchange "established by the State under section 1311." This lanh'Uage identifies two 

conditions for the issuance of tax credits-that the Exchange is established "by the State" and 

that it is established "under section 1311"-each of which requires purchase of the qualifying 

health coverage in a state-established Exchange. The remainder of the statute supports the plain 

language of the tax credit provisions. See Jonathan Adler & Michael Cannon, Taxation Without 

Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA, 23 Health 

Matrix 1. L. Med. 1, 119 (2013) ("Adler & Cannon") 

B. There Is Widespread Agreement that the Text's Meaning Is Plain 

Notably, there is little disagreement within the legal and policy communities on the plain 

meaning of these provisions. The non-partisan Congressional Research Service, for example, 

acknowledges that the tax-credit eligibility provisions are clear. Congo Res. Serv., Legal Analysis 

of Availability of Premium Tax Credits in State and Federally Created Exchanges Pursuant to the 

AtTordable Care Act (Jul. 23, 2012) Ca strictly textual analysis of the plain meaning of the 

provision would likely lead to the conclusion that the IRS's authority to issue the premium tax 

credits is limited only to situations in which the taxpayer is enrolled in a state-established 
121 

exchange. Therefore, an IRS interpretation that extended tax credits to those enrolled in federally 

facilitated exchanges would be contrary to clear congressional intent, receive no Chevron 

deference, and likely be deemed invalid"). Even defenders of the IRS rule have acknowledged 

the statute's eligibility rules "clearly say" that tax credits are authorized only for those who buy 

health insurance through state-established Exchanges. See, e.g., Timothy Jost, Yes, the Federal 

Fxchal1ges Can Offer Premium Tax Credits (Sep. 11, 2011), 

http://www.healthrefonnwatch.com/2011/09/II/yes-the-federal-exchange-can-ofl.er -premi umtax-credits/. 

Indeed, in its own regulations HHS has recognized that an Exchange established by the 

Secretary under Section 1321 of the Act is neither an Exchange "established by the State" nor is 

it "established under Section 1311." See 45 C.F.R. 155.20 (defining a "federally facilitated 

Exchange" as meaning "an Exchange established and operated withill a State by the Secretary 

under section 1321(c)(l) of the Affordable Care Act") (emphases added). Thus did Congress 

condition the availability of premium-assistance tax credits on states taking each of the actions 

specified in Section 1321, including but not limited to the establishing of Exchanges. 

When the IRS promulgated the regulation purporting to authorize the issuance of tax 

credits and cost-sharing subsidies for the purchase of qualified health insurance plans in federal 

Exchanges, it did not identify any statutory language to justify its interpretation. There is a 

simple explanation for this: there is no supporting language. In the absence of such language, the 

IRS lacks the authority to extend tax credits where Congress has failed to do so. As the Supreme 

Court has been repeatedly forced to explain, "[ilt is axiomatic than an administrative agency's 

power to promulgate legislative regulations is limited to the authority delegated by Congress." 

Bowen v. Georgetown Univ. Hasp., 488 U.S. 204, 208 (1988) 

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C. The PPACA Precludes IRS's Deviation from the Plain Meaning of the Text 

After IRS promulgated its tinal rule, some federal officials attempted to otler pust huc 

rationales for its deviation from the statutory text. Amici here address the two most prominent, in 

turn. 

1. The Purported F:quivalence Between State and Federal F:xchanges 

A common rationale is that a federal Exchange stands in the shoes of a state one and so 

should be treated in the same manner. But the language in Section 1321 requiring the Secretary 

to establish and operate "such exchange within the State" does not establish an equivalence 

between state and federally facilitated Exchanges. A federal Exchange created under Section 

1321 is subject to the same regulatory requirements as a state Exchange created under Section 

1311, but the two remain distinct. As noted above, Section 1311 expressly requires that an 

authorized Exchange must be "established by a State," 42 U.S.c. § 18031(d)(I), and Section 

1304(d) also expressly defines "State" as "each of the 50 States and the District of Columbia." 

42 USc. § 18024(d). Section 1321 also recognizes that federal Exchanges are distinct. It 

provides, "the Secretary shall ... establish and operate such Exchange within the State and the 

Secretary shall take sllch actiuns as are necessary tu implement sllch uther requirements," a 

reference to the requirements of Title 1 of the PPACA, which include those limiting tax-credit 

eligibility to states that establish Exchanges. PPACA § 1321 (emphasis added). Later 

amendments to the PPACA provide that Exchanges created by territories are to be treated as the 

equivalent of state-run Exchanges, but there is no such language concerning federally run 

Exchanges. 42 U.S.c. § 18043(a). See alm 26 U.S.c. § 36B(t)(3) (mentioning Section 1311 and 

Section 1321 Exchanges separately). If the language of Section 1321 made federal Exchanges 

the equivalent of Section 1311 Exchanges, there would have been no reason to adopt this 

7 
123 

additional language in the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 

§ 1004, 124 Stat. 1029, 1035 (2010) ("HCERA"). 

Even assuming arguendo that a Section 1321 Exchange is the equivalent (or "stands in 

the shoes") of a Section 1311 Exchange, that still does not justify the extension of tax credits in 

federal Exchanges. This is because, as noted above, when Section 1401 defines the coverage for 

which tax credits may be provided, it identifies two relevant conditions: (1) that the insurance is 

purchased in a Section 1311 Exchange, and (2) that the insurance is purchased in an Exchange 

"established by the State." So even if one were to read the reference to an Exchange 

"established under Section 1311" as incorporating those established by the federal 

government under Section 1321, this would not make such an Exchange one "established by the 

State" as expressly and repeatedly required by Section 1401. 

2. Reporting Requirements 

Federal otllcials have argued, as well, that Congress indicated its intention to provide tax 

credits in federal Exchanges by imposing reporting requirements on both state and federal 

Exchanges that include a requirement to report information related to tax credit payment and 

eligibility. This argument also fails, for at least four reasons 

First is the statutory text. The information reporting provisions make express reference to 

both Section 1311 and Section 1321 Exchanges. 26 U.S.C. § 36B(f)(3). The fact that the authors 

of the HCERA felt the need to expressly identify both Section 1311 and Section 1321 Exchanges 

shows that the two are not equivalent. If the "such exchange" language noted above were 

sufficient to make a Section 1321 Exchange equivalent to a Section 1311 Exchange in all 

respects, it would have been unnecessary to mention both 
124 

Second, the relevant HCERA provisions require substantial reporting of infonnation that 

will be of use to federal authorities even apart from the provision of tax credits, including the 

level of coverage obtained and premiums charged. Insofar as the PPACA is designed to 

encourage states to create their own Exchanges, the collection of information in federal 

Exchanges indicating the level of tax credits or subsidies for which individuals would be eligible 

under a state Exchange would be useful. Such reporting certainly does not suggest that Congress 

intended to neutralize the powerful incentive to states to establish their own Exchanges-quite 

the opposite, it lets the states know that they are leaving money on the table and should get with 

the program. 

Third, even were this not the case, providing a single list of reporting requirements for all 

Exchanges is easier and more efficient than trying to separately delineate what infonnation must 

be reported by what sort of Exchange. Such a provision does not even speak to any equivalence 

between state and federal Exchanges in other respects, such as the availability of subsidies. 

Fourth, Congress applied these reporting requirements to ''[e]ach Exchange," 

encompassing both American Health Benefits Exchanges, where the relevant tax credits are 

available, and Small Business Health Options Program or "SHOP" Exchanges, in which the 

relevant tax credits are not available. 26 US.c. § 36B(f)(3); 42 USc. § IS031(b). The adoption 

of these reporting requirements therefore cannot establish that tax credits and cost-sharing 

subsidies are available in all F;xchanges subject to these requirements. 

* * * 

In sum, the plain text of the PPACA clearly provides that premium-assistance tax credits 

are only available for the purchase of qualified health insurance plans in state-established 

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Exchanges. This text is unambiguous and fully consistent with all of the relevant statutory 

provisions. 

II. The Legislative History of the PPACA Supports the Plaiu Meauiug of the Statutory 

Text 

Nothing in the statute or legislative history should lead the Court to doubt the plain 

meaning of the statutory text. To the contrary, all of the relevant provisions of the PPACA and 

the statute's legislative history are fully consistent with the plain meaning of Section 36B. See 

generally Adler & Cannon, supra, at 142-65. When promulgating this regulation, the IRS failed 

to cite any legislative history in support of its interpretation. There is none. 

A. The Legislative History Demonstrates That, Consistent with the Statutory 

Text's Plain Meaning, Congress Intended Subsidies To Induce the States To 

Establish Exchanges 

Supporters of comprehensive health refonn had begun to coalesce around broad reform 

principles by late 2008, though disagreements about key elements, such as the role states could 

or should play in any reforms, remained. These disagreements would continue throughout the 

development of the various legislative proposals, including the Senate bill that would eventually 

become the PPACA. The legislation that eventually passed reflects numerous compromises and 

an ultimate decision that enacting a bill that many supporters considered to be flawed was better 

than not passing any bill at all. 

Senate Finance Committee Chairman Max Baucus (D-MT) was one of the primary 

authors of the bill containing the Exchange and premium-assistance tax-credit provisions that 

would become law under the PPACA See Kate Pickert, Max Baucus, Obamacare Architect, 

Slams Healthcare.gov Rollout, TIME.com (November 6, 2013) (describing Baucus as "a key 

architect of the law" and quoting Baucus, ") spent two years of my life working on the 

Affordable Care Act"). In November 2008, Baucus released a "white paper" that, among other 

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things, proposed a health-insurance tax credit for certain small businesses and a "nationwide 

insurance pool called the Health Insurance Exchange." See Senator Max Baucus, Call to Action: 

Health Reform 2009, Senate Finance Committee White Paper (Nov. 12,2008). 

Senator Baucus modeled his small-business tax credit proposal on a bipartisan bill that 

had been referred to the Finance Committee in 2008, which conditioned credits on states 

establishing Exchanges and enacting other health insurance laws. See Small Business Health 

Options Program Act, S. 2795, I 10th Congo (2nd Sess. 2008) (offering tax credits to '''qualified 

small employers" that "purchas[e] health insurance coverage for [their] employees in a small 

group market in a State which ... maintains a State-wide purchasing pool that provides 

purchasers in the small group market a choice of health benefit plans, with comparative 

information provided concerning such plans and the premiums charged for such plans made 

available through the Interne!"); Baucus, Call to Action, supra, at 20 ("Initially, the credit would 

be available to qualifying small businesses that operate in states with patient-friendly insurance 

rating rules."); id. at 32 n.lO. 

In 2009, Baucus continued to model his proposal on a re-introduced version of S. 2795 

called the Small Business Health Options Program Act of 2009 (S. 979). See Small Business 

Health Options Program Act of 2009, S. 979, III th Congo (1 st Sess. 2009) (identical language to 

S. 2795). See also Senator Max Baucus, Description of Policy Options - Expanding Health Care 

Coverage: Proposals to provide affordable coverage to all Americans, S. Comm. Fin. White 

Paper (May 14, 2009) ("Micro-groups (2-10 employees) could purchase insurance through the 

Health Insurance Exchange immediately. The remainder of small employers can purchase 

through the Health Insurance Exchange once the federal rating rules are fully phased in by their 

state."); S Comm. Fin., Framework for Comprehensive Health Reform 3 (Sept. 8, 2009) 

II 
127 

(proposing small-business tax credits available through "a SHOP exchange modeled after S. 979, 

the 'Small Business Health Options Program Act"'); S. Comm. Fin., America's Healthy Future 

Act, Chairman's Mark (Sept. 22, 2009) ("If a State has not yet adopted the reformed rating rules, 

qualifying small employers in the state would not be eligible to receive the credit"); America's 

Healthy Future Act of 2009, S. 1796, ll1th Congo 182-83 (lst Sess. 2009) ("STATE FAILURE 

TO ADOPT INSURANCE RATING REFORMS.-No credit shall be detennined under this 

section with respect to contributions by the employer for any qualitled health benetlts plans 

purchased through an exchange for any month of coverage before the tlrst month the State 

establishing the exchange has in effect the insurance rating reforms described in subtitle A of 

title XXII of the Social Security Act"); S Rep. No. 111-89 (2009) ("If a State has not yet 

adopted the reformed rating rules, qualifying small business employers in the State are not 

eligible to receive the credit"). 

Supporters disagreed over whether health insurance Exchanges should be state-operated. 

Many observers, including state otllcials, favored a system of 50 state-run Exchanges rather than 

a single, nationwide Exchange operated by the federal government. See Adler & Cannon, supra, 

148-49 n.107; see also NAIC LtT to Speaker Pelosi and Majority Leader Reid (Jan 6, 2010) 

("We urge Congress to take advantage of state expertise, experience, and resources in 

implementing this legislation by ensuring that states retain primary responsibility for regulating 

the business of insurance and that health insurance Exchanges be established and administered at 

the state level with the flexibility to meet the needs of our local markets and consumers."). Key 

US. senators also favored state-run Exchanges. See Patrick O'Connor & Carrie Brown, Nancy 

Pelosi's Uphill Health Bill Battle, Politico (Jan. 9, 2010) ("Two key moderates-Sen. Ben 

Nelson (D-Neb.) and Sen. Joe Lieberman (I-Conn.)-have favored the state-based exchanges 

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over national exchanges."). See af.m Reed Abelson, Proposals Clash on States' Roles in Health 

Plans, N.Y. Times (Jan. 13, 2010) ("The state-federal divide between the House and Senate 

could be a difficult gap to bridge. One possible compromise would be to have a federal exchange 

set up alongside the state exchanges. Senator Ben Nelson, Democrat of Nebraska, is a former 

governor, state insurance commissioner and insurance executive who strongly favors the state 

approach. His support is considered critical to the passage of any health care bil1."); Carrie 

Brown, Nelson: National Exchange a Dealbreaker, Politico (Jan. 25, 2010). 

Washington & Lee University law professor Timothy Jost was a frequent participant in 

the health care reform debate who appears to have had some influence over the process. Press 

Release, W&L Law's Jost Invited to Health Care Bill Signing Ceremony (March 23, 2010), 

http://law.wlu.eduinews/storydetail.asp?id=758 (quoting Jost as having attended the ceremony 

with "secretaries and Congress people and various other leaders who had worked on the bill"). In 

early 2009, Jost noted a problem Congress would encounter if it chose state-run Exchanges, and 

otJered a solution that mirrored the approach taken by S. 2795 and Baucus's white paper with 

regard to small-business tax credits: 

The Constitution has been interpreted to preclude Congress from 

passing laws that "commandeer" the authority of the states for 

federal regulatory purposes. That is, Congress cannot require the 

states to participate in a federal insurance exchange program by 

simple fiat. This limitation, however, would not necessarily block 

Congress from establishing insurance exchanges. Congress could 

invite state participation in a federal program, and provide a 

federal fallback program to administer exchanges in states that 

refused to establish complying exchanges. Alternatively it could 

exercise its Constitutional authority to spend money for the public 

welfare (the "spending power"), either by offering tax subsidiesfi"· 

insurance ollly in states that complied with federal requirements 

(as it has done with respect to tax subsidies for health savings 

accounts) or by offering explicit payments to states that establish 

exchanges conforming to federal requirements 

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Timothy Jost, O'Neill Institute Legal Solutions in Health Refonn, Health Insurance Exchanges: 

Legal Issues 7 (2009) (emphasis added). As Jost observed, conditioning tax credits or other 

benefits on state cooperation could induce otherwise reluctant states to establish health insurance 

Exchanges in accordance with federal requirements. 

By late 2009, the authors of both leading Senate bills had abandoned the idea of a single, 

nationwide Exchange in favor of 50 state-run Exchanges, with the federal government operating 

Exchanges only in those states that declined to do so. See, e.g, S. Comm. Fin., Framework for 

Comprehensive Health Reform (Sept. 8, 2009); see al.m S. Comm. Fin., America's Healthy 

Future Act, Chairman's Mark, (Sept. 22, 2009). The Finance Committee-reported bill expressly 

conditioned its "premium-assistance credits" on the recipient having enrolled in a health plan 

"through an exchange established by the State." America's Healthy Future Act of 2009, S 1796, 

ll1th Cong., 147, 152 (1st Sess. 2009) (specifying that the "premium assistance amount" can 

only be calculated using premiums from qualitled health plans offered in "an Exchange 

established by the State"; and further providing that taxpayers are eligible for tax credits only 

during "coverage months," defined by cross-reference as months during which the taxpayer is 

enrolled in a qualified health plan purchased through "an exchange established by the State"). 

The bill of the U.S. Senate Committee on Health, Education, Labor, & Pensions ("HELP 

Committee") revoked "premium credits" from taxpayers who had already been receiving them if 

their state's "gateways" (i.e., Exchanges) fell out of compliance with federal requirements. 

AtTordable Health Choices Act, S. 1679, liith Congo § 3104(b) (2009). This bill also 

permanently withheld credits from all residents until their state enacted legislation implementing 

the bill's employer mandate Id. at § J104(d) (2009). See also Adler & Cannon, supra, at 154-

155. 

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The decision to condition tax credits on states establishing Exchanges and enacting 

various health insurance regulations solved an additional problem confronting the Finance 

Committee The Finance Committee does not have jurisdiction over non-group health insurance 

markets See Senate Finance Committee, Jurisdiction, 

http://www.finance.senate.gov/about/jurisdiction/, accessed November 16, 2013 Gurisdiction 

includes various government health insurance programs, "health and human services programs 

tlnanced by a specific tax or trust fund," and "ERISA group health plans"). Such matters lie 

within the jurisdiction of the HELP Committee. See Senate Health, Educ., Labor, and Pensions 

Comm., About the HELP Committee, http://www.help.senate.gov/aboutl, accessed November 16, 

2013 Gurisdiction broadly includes "[m]easures relating to education, labor, health, and public 

welfare"). It was not sufficient for the Finance Committee to direct the federal government to 

establish Exchanges whenever states failed to do so. Such a provision may have avoided an 

unconstitutional commandeering, but the Committee would still lack jurisdiction to legislate in 

the area of non-group health insurance in the first place. Tax credits, however, are within the 

Finance Committee's jurisdiction, as are the conditions Congress imposes on them. Conditioning 

tax credits on states establishing Exchanges therefore created a jurisdictional hook that enabled 

the Finance Committee to legislate in an area that would otherwise lie beyond its reach2 

2 See Executive Committee Meeting to Consider Health Care Reform: Before the Senate 

Committee on Finance, III th Congo 326 (2009), 

http://www. fi nance. senate.govlbearings/heari ngldownloadf?i d~c6aOc668-37 d9-495 5-861 c50959bOa8392 (Sen. Baucus explains, in response to an objection by Sen. John Ensign (R-NV), 

that the Finance Committee has jurisdiction to direct states to establish Exchanges and enact 

other health-insurance measures because the bill "conditions" tax credits on same). Note the 

otllcial transcript erroneously quotes Baucus as saying, "Taxes arefl '{ the jurisdiction of this 

committee." Video of the markup shows Baucus correctly said "are in." Executive Committee 

Meeting to Consider an Original Bill Providing for Health Care Reform: Before the S. Comm. on 

Finance, C-SPAN (starting at 25321) (Sept 23, 2009), http://www.c15 
131 

When Senate leaders merged the Finance and HELP bills to create the PPACA, they 

retained the Finance Committee's language restricting eligibility for "premium-assistance tax 

credits" to taxpayers in states that establish Exchanges. Indeed, at the same time the PPACA's 

authors dropped the Finance Committee language conditioning smal1-business tax credits on 

states enacting certain health-insurance laws, they strengthened the language conditioning 

premium-assistance tax credits on states establishing an Exchange. Compare America's Healthy 

Future Act of 2009, S. 1796, Illth Congo § 1205 with PPACA § 1401 and 26 Us.c. § 36B 

(cross-reference in "coverage months" definition augmented with explicit requirement that tax 

credit recipients be enrolled in a qualified health plan "through an Exchange established by the 

State under section 1311 of the Patient Protection and Affordable Care Act") The Senate 

approved the PPACA on December 24, 2009. U.S Senate Roll Call Votes Illth Congress - 1st 

Session, H.R. 3590 (Patient Protection and Affordable Care Act) (December 24, 2009), 

http://www.senate.gov/legi slati veILIS!roll_ callJists!roll_ call_vote _ cfm.ctln?congress~ I 1 1 &ses 

sion~ 1& vote~00396. 

The Senate bill differed in that respect from the House's competing legislation. The 

House had already passed a bill creating a single, nationwide Exchange administered by the 

federal government. Affordable Health Choices for America Act, HR. 3962, lllth Congo (lst 

Sess. 2009). Like the HELP bill, the House bill would have allowed states to operate Exchanges, 

generally allowed health-insurance subsidies through either type of Exchange, and contained 

explicit language creating full equi valence between Exchanges operated by states and the federal 

government. See Adler & Cannon, Silpra, at 159 

spanvideo.org!program!289085-4. This material error appears uncorrected in the government's 

Exhibit 30. 

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Many House members disapproved of the Senate bill's approach to Exchanges. In a letter 

to the President and the House leadership, for example, 11 members from Texas noted that their 

state had failed to take advantage of a conditional benefit Congress had offered under the 

Children's Health Insurance Program Reauthorization Act of 2009, leaving the intended 

beneficiaries of that law "no better off." The letter's authors warned that under the Senate bill, 

residents of recalcitrant states likewise would be left "no better off." U.S. Rep. Doggett: Settling 

for Second-Rate Health Care Doesn't Serve Texans, My Harlingen News (Jan. 11,2010) ("A 

state-based plan relies on laggard state leadership that, in Texas, would be unwilling or 

unable to administer the exchange, leaving millions of Texans no better off .... Not one Texas 

child has yet received any benefit from the Children's Health Insurance Program Reauthorization 

Act (CHIPRA), which we all championed, since Texas declined to expand eligibility or adopt 

best practices for enrollment .... The Senate approach would produce the same result-millions 

of people will be left no better off than before Congress acted."). See also Julie Rovner, House, 

Senate View Health Exchanges Differently, Nat'l Public Radio (Jan. 12, 2010) (the letter's 

authors "worry that because leaders in their state oppose the health bill, they won't bother to 

create an exchange, leaving uninsured state residents with no way to benefit from the new law"). 

In a special election for the U.s Senate on January 19,2010, Massachusetts voters placed 

in the Senate Scott Brown, who had vowed to join a filibuster of any compromise between the 

House bill and the PPACA. With Brown's election, the prospect of enacting anything but the 

PPACA disappeared. See Michael Cooper, G.O.P. Senate Victory Stuns Democrats, New York 

Times (January 19, 2010), http://www.nytimes.com/20 10/0 1I20/us/politics/20election.html ("Mr. 

Brown has vowed to oppose the bill, and once he takes office the Democrats will no longer 

control the 60 votes in the Senate needed to overcome filibusters"). Following Senator Brown's 

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election, the ollly way Congress could enact a comprehensive health refonn bill was if the House 

accepted the PPACA-including the PPACA's language conditioning premium-assistance tax 

credits on states establishing Exchanges. In other words, the choice for health care reform 

supporters was either a Senate bill that many found unsatisfactory or no bill at all. 

The House approved the PPACA on March 21, 2010, after receiving assurances the 

Senate would approve the limited changes the House planned to make to the PPACA bill through 

the Health Care and Education Reconciliation Act. Pub. L. No. 11 1-152, § 1204, 124 Stat. 1029, 

1055-56 (2010) CHCERA"). Because the HCERA would be passed by the Senate through the 

reconciliation process, the range and types of amendments that could be offered to the bill were 

limited. See generally Congo Res. Serv., The Budget Reconciliation Process The Senate's "Byrd 

Rule" (July 2, 2010), available at https://opencrs.com/documentiRL30862/ (explaining how 

Senate rules governing the budget-reconciliation process generally disallow legislative 

provisions not related to deticit reduction, and the reasons House and Senate leaders chose the 

reconciliation "sidecar" strategy for enacting the PPACA). In other words, health care reform 

supporters lacked the votes to enact changes many might have wanted. And in particular, due to 

Senate rules, it is highly unlikely the reconciliation could have been used to authorize tax credits 

in federally established health insurance exchanges. See Declaration of Douglas Holtz-Eakin in 

Halhig v. Sehelins, No. 13-cv-623 (D. D.C. Nov. 18, 2013), Au. A, ~~14-16 The President 

signed the PPACA into law on March 23, 2010, and signed the HCERA one week later. 

In any event, the HCERA amended PPACA § 1401,26 U.S.c. § 36B, seven times, but it 

did not alter the law's tax-credit eligibility rules. See Adler & Cannon, supra, at 162-163. 

Among other changes, the HCERA provided that Exchanges established by U.S. territories 

would be treated as if they had been established by states. HCERA § 1204, 124 Stat. at 1055-56 

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CA territory that elects ... to establish an Exchange in accordance with part II of this subtitle 

and establishes such an Exchange in accordance with such part shall be treated as a State for 

purposes of such part."). No amendment was adopted to create equivalence between stateestablished Exchanges and federal Exchanges 

As noted above, the HCERA also imposed certain reporting requirements on "[e]ach 

Exchange (or any person carrying out 1 or more responsibilities of an Exchange under section 

131 1 (f)(3) or 1321(c) of the Patient Protection and Affordable Care Act)." HCERA § 1004, 124 

Stat. at 1035; PPACA § 1401 (adding § 36B(t) to Title 26). Of note, this amendment separately 

identified both Section 1311 Exchanges and Section 1321 Exchanges, reflecting the 

understanding that these two types of Exchanges are legally distinct. Were Exchanges 

established by a state under Section 1311 and federally facilitated Exchanges created under 

Section 1321 equivalent, as the government now claims, there would have been no need to 

identify them separately. 

Some PPACA supporters may have preferred to authorize tax credits through both staterun and federal Exchanges, but like many proposals that could not command enough votes to 

pass the Senate, this was no longer an option. See, e.g., Shailagh Murray and Lori Montgomery, 

Deal on health bill is reached (December 20,2009), http://articles.washingtonpost.com/2009-12-

20/politics/36866199 _1_ health-bill-gop-yields-government-insurance-option ("Many liberals, 

however, were bitterly disappointed with the bargains [Senate Majority Leader Harry] Reid [DNV] struck to win support from moderates in his caucus, any member of which could demand 

alterations in exchange for his or her support. Democratic leaders dropped a government 

insurance option and the idea of expanding Medicare to younger Americans. Reid also omitted 

language that would have eliminated the federal antitrust exemption for health insurers-another 

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nonstarter for [Senator Ben] Nelson [D-NE]."). The choice faced by health care reform 

supporters was between a bill many found inadequate and no bill at all. See Letter from Henry J. 

Aaron, Senior Fellow, The Brookings Institution, et al. to Nancy Pelosi, Speaker of the House, et 

al. (Jan. 22, 2010), available at http://www.newrepublic.com/blog/the-treatmentl47-healthpolicy-experts-including-me-say-sign-the-senate-bill (51 signatories, including "long-standing 

advocates of progressive causes" and others who "are nonpartisan or identify as political 

moderates," acknowledged that the PPACA is "imperfect" but urged House leaders to "adopt the 

Senate bill, and the President must sign it"). See generaf/y, Kate Nocera, Bill Clinton: 

Obamacare was 'Best Bill You Could have Passed', Politico (Feb. 8, 2013), 

http://www.politico.com/story 12013 102/bill-clinton -ob amacare-was-b est-bill-you -could -havepassed-87380.html (quoting former President William Clinton telling Democratic congressional 

caucuses the PPACA "was the best bill you could have passed in the Congress under the 

circumstances given the filibuster problem in the Senate"). 

The federal government would like this Court to believe that the language limiting tax 

credits and subsidies to state-run Exchanges is a mistake, perhaps even a drafting error. The 

mistake, if there was one, was not that the text of the PP ACA somehow failed to capture 

congressional intent, but that Congress failed to anticipate the widespread rejection by states of 

the role the law had assigned them. 

As was widely reported at the time of the PPACA's enactment, PPACA proponents were 

confident that all states would establish Exchanges and never even contemplated the possibility 

that numerous states would refuse. See Remarks on Health Insurance Reform in Portland, Maine, 

2010 Daily Compo Pres. Doc. 220 (Apr. 1,2010) (quoting President Barack Obama, "by 2014, 

each state will set up what we're calling a health insurance exchange"). See also Dep'ts of Labor, 

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Health & Human Servs, Educ., & Related Agencies Appropriations for 20 II, Hearing Before a 

Subcommittee on Appropriations, House of Representatives, Ilith Congo 171 (Apr. 21, 2010) 

(statement of Kathleen Sebelius, Secretary, Department of Health & Human Services), 

hup://www.gpo.gov/fdsys/pkg/CHRG-I I Ihhrg58233/pdf/CHRG-I I I hhrg58233.pdf ("We have 

already had lots of positive discussions, and States are very eager to do this. And 1 think it will 

very much be a State-based program."). See also Robert Pear, U.S. Officials Brace for Huge 

Task of Operating Health Exchanges, N.V. Times (Aug. 4, 2012) CWhen Congress passed 

legislation to expand coverage two years ago, Mr. Obama and lawmakers assumed that every 

state would set up its own exchange ... running them [is] a herculean task that federal officials 

never expected to perform"). See also Tom Howell Jf., After Obamacare Health Exchange 

Deadline Passes, 26 States Opt In with Feds, Wash. Times (Feb. 16, 2013), 

http://www.washingtontimes.com/newsI20 1 3/feb/1 6/after -obamacareheal th-exchange-deadl i nepasses-26npage~all CThe Obama administration says it will be ready to run exchanges in more 

than half of the states. 'It's not what the drafters of the bill had hoped would happen,' 

Timothy S. J ost, a professor at Washington and Lee University School of Law who specializes in 

health care, said of the outcome on Friday.' '). See also Ezra Klein and Sarah Kliff, Obama's Last 

Campaign: Inside the White House Plan to Sell Obamacare, Wash. Post (July 17,2013) (noting 

an "internal White House memo" detailing obstacles to PPACA implementation did not even 

identify "political opposition or widespread state resistance" as potential hurdles). When the 

President signed the PPACA into law "there was widespread expectation [states] would want to 

operate the new insurance exchanges." Id 

Indeed, the assumption that states would create their own Exchanges as called for by the 

PPACA was nearly universal among the PPACA's supporters in Congress and the executive. But 

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see US. Rep. Doggett: Settling for Second-Rate Health Care Doesn't Serve Texans, My 

Harlingen News, Jan. II, 2010 (warning that Texas, for one, might not cooperate with the 

PPACA's approach to Exchanges). The Congressional Budget Office scored the PPACA without 

considering whether tax credits would be limited to state-run Exchanges, but that was because it 

also scored the bill as if federal government would not have to spend any money paying to 

implement federal Exchanges. See Adler & Cannon, supra, at 186-188. Indeed, the PPACA 

never authorized money for the creation of federal Exchanges, because bill supporters did not 

expect that such funds would be necessary. J. Lester Feder, HHS May Have to Get 'Creative' on 

Exchange, Politico (Aug. 16, 2011, 6:54 PM), 

http://www.politico.com/news/stories/0811/61513.html ("A quirk in the Affordable Care Act is 

that while it gives HHS the authority to create a federal exchange for states that don't set up their 

own, it doesn't actually provide any funding to do so. By contrast, the law appropriates 

essentially unlimited sums for helping states create their own exchanges. The lack of funding for 

a federal exchange complicates what is already a difficult task."). This situation is not anomalous. 

Recent events have shown many PP ACA supporters made many misjudgments about how the 

law would be implemented. 

B. Congress Routinely Conditions Federal Benefits On State Action To Induce 

the States To Carry Out Federal Priorities 

The provisions in the PPACA conditioning premium-assistance tax credits on state 

willingness to establish health insurance Exchanges embody a traditional legislative means of 

inducing state cooperation. The federal government "may not compel the states to implement, by 

legislation or executive action, federal regulatory programs." Printz v. United States, 521 US. 

898, 925 (1997). See also New York v. United States, 505 US. 144, 162 (1992) (" [TJhe 

Constitution has never been understood to confer upon Congress the ability to require States to 

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govern according to Congress's instructions."); Nat'! Fed'f/ olindeI'. Blis. v. Sebe!ilis, 132 S. Ct. 

2566 (2012). It can, however, provide various incentives for state cooperation Accordingly, it is 

routine for Congress to provide financial incentives to encourage states to enact desired 

legislation Such incentives often include direct federal spending, as with the PPACA's 

expansion of the Medicaid program, but often include tax incentives for state citizens. The 

following examples of enacted and proposed conditional benefits demonstrate that conditioning 

federal benefits, in general, and favorable tax treatment for state residents, in particular, is 

routine and was part of the debate over the PPACA. 

1. Medicaid 

The largest and best-known example of Congress conditioning direct spending on state 

laws is the Medicaid program. For 47 years, Congress has conditioned Medicaid grants to states 

on states enacting and operating a Medicaid program that meets federal specifications. 42 U. S. C. 

§1396c; Nat 'I Fed'n ollndep. Hus. v. Sebelills, 132 S. Ct. at 2601-02. Both the Finance bill and 

the final PPACA again employed this device with respect to Medicaid. Each conditioned all 

existing federal Medicaid grants on states expanding their programs to cover all legal residents 

with incomes below 138 percent of the federal poverty leveL3 America's Healthy Future Act, of 

2009, S 1796, Ilith Congo (1st Sess. 2009); PPACA Section § 2001 

The amount of money Congress originally conditioned on states implementing the 

PPACA's Medicaid expansion far exceeds the amount it conditioned on states establishing 

Exchanges. As enacted, the PPACA conditioned all Medicaid grants to states on states' 

implementing the Act's Medicaid expansion. The tax credits Congress conditioned on states 

3 In NFiB V. Sebefius, the Supreme Court ruled that conditioning existing Medicaid grants on 

states implementing the expansion was coercive and thus unconstitutional. But the court allowed 

Congress to condition the PP ACA' s new Medicaid grants on states implementing the expansion. 

132 S. Ct. at 2607-08. 

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establishing Exchanges were small in comparison. Compare Otlice of Management and Budget, 

Fiscal Year 2014; Historical Tables - Budget of the U.S. Government 163, available at 

http://www. whitehouse.gov/sites/defaultlfiles/omb/budgetlfy20 14/assets/hist. pdf (showing 

federal Medicaid grants to states exceeded $250 billion annually even before the PP ACA 

increased federal Medicaid spending); and Congo Budget Otlice, The Budget and Economic 

Outlook: Fiscal Years 2013 to 2023, 16 (2013) (showing Exchange-related subsidies will total 

just $21 billion in 2014, and will remain less than one-quarter the amount of total federal 

Medicaid grants through 2023) (with authors' calculations). 

This remains the case, even after the Supreme Court's decision in NFIB V. Sebelius See 

132 S. Ct. at 2607 (allowing states to decline the PPACA's Medicaid expansion without losing 

the "old" Medicaid grants). The tax credits are comparable to the "new" Medicaid grants that 

remain conditioned on states implementing the Medicaid expansion. Congo Budget Otlice, 

Updated Estimates for the Insurance Coverage Provisions of the Affordable Care Act (March 13, 

2012) (showing the "new" Medicaid grants to be roughly equal to the amount the PPACA 

conditions on states establishing Exchanges). 

Indeed, for the first few years, at least, the Medicaid-expansion funds are so substantially 

larger than the tax credits that it is likely that in 2014, the 25 states that are not implementing the 

Medicaid expansion will forgo more federal subsidies than the 34 states that have opted not to 

establish an Exchange. Compare Updated Estimates for the Insurance Coverage Provisions, 

supra, at 11, wilh Budget and Economic Outlook, supra, at 16 

2. State Children '5 Health insurance Program 

In 1997, Congress enacted the State Children's Health Insurance Program ("SCRIP"), 

which conditions federal grants to states on each state's implementation of a health insurance 

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program for children with low-to-moderate incomes. Congr. Res. Serv., State Children's Health 

Insurance Program (CHIP) A Brief Overview (March 18, 2009), 

https:llopencrs.com/documentIR40444/ CAll states, the District of Columbia, and the five 

territories have CHIP programs."). 

In 2009, Congress reauthorized SCHIP with the Children's Health Insurance Program 

Reauthorization Act (CHIPRA). Jd. Over a five-year period, CHIPRA conditioned a total of 

$100 million in grants on states expanding outreach and enrollment activities, plus $225 million 

on states taking steps to intended to improve the quality of care for covered children. The 

Commonwealth Fund, The Children's Health Insurance Program Reauthorization Act: Progress 

After One Year, States in Action (May 2010). 

3. Exchanges 

The Finance bill and the PPACA created a financial penalty of sorts to induce states to 

establish Exchanges. Each bill imposed a "maintenance of effort" ("MOE") requirement that 

required states to keep their Medicaid-eligibility levels for adults exactly where they were on the 

date of the bills' enactment The bills conditioned the lifting of this requirement on states 

establishing fully operational health insurance Exchanges. See S. Rep. No. 111-89 (2009). See 

also Ctrs. for Medicare and Medicaid Servs., State Medicaid Dirctor Letter 11-001, ACA 14 

(Feb. 25, 2011), http://downloads.cms.gov/cmsgov/archiveddownloads/SMDLldownloads/smd 11 001.pdf ("The MOE provisions in the Affordable Care Act 

specify that existing coverage for adults under the Medicaid program generally remains in place 

until the Secretary determines that an Exchange established by the State under section 1311 of 

the Affordable Care Act is fully operational, which is likely to be January 1, 2014") (emphasis 

added). This was not only the same sort of financial incentive as the conditions imposed on 

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premium-assistance tax credits, but it also had the same object: to encourage states to establish 

Exchanges. 

This approach of encouraging the states to establish Exchanges was not uncommon in the 

run-up to the PPACA. The Finance bill, the HELP bill, and the PPACA all included incentives 

for states to establish Exchanges, offering unlimited start-up funds to states who agreed to 

establish a compliant Exchange. See America's Healthy Future Act of2009, S. 1796, Il1th Congo 

§ 2237(c) (2009); Atlordable Health Choices Act, S. 1679, 111th Congo § 3101(a) (2009); 42 

US.c. § 1803 I (a)(2). And HELP Committee Republicans offered an alternative bill that would 

have conditioned new Medicaid payments to states on states' establishing Exchanges meeting 

that bill's requirements. Patients' Choice Act, S. 1099, III th Congo (I st Sess. 2009). 

4. Medical Malpractice Liability Reform 

The PPACA adopted language from the Finance bill expressing the "sense of the Senate" 

that Congress should condition grants to states on states' enacting laws to reform medical 

malpractice liability. S. Rep. No. 111-89. ("This provision would express the sense of the Senate 

that (I) health reform presents an opportunity to address issues related to medical malpractice 

and medical liability insurance, (2) states should be encouraged to develop and test alternatives 

to the current malpractice tort system, and (3) Congress should consider establishing a state 

demonstration program to evaluate alternatives to the existing malpractice tort system with 

respect to resolution of malpractice claims."). During the Finance Committee's mark-up of S. 

1796, Republican senators otTered amendments that would have conditioned new Medicaid 

grants on states enacting medical malpractice retorms. Jd. 

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The PPACA created just such a conditional-grant program, as did the House-passed 

AtTordable Health Choices for America Act. PPACA §10607; AtTordable Health Choices for 

America Act, HR 3962, § 2531, Illth Cong. (1st Sess. 2009). 

5. Employer Mandate 

The HELP Committee bill conditioned its version of premium credits on states enacting 

laws to implement that bill's employer mandate. See Affordable Health Choices Act, supra, 

§ 31 04(d). See also Adler & Cannon, supra, at 155-56. Under the HELP bill, Prof Jost has 

explained, "[aj state's residents will only become eligible for federal premium subsidies, 

however, if the state provides health insurance for its state and local government employees." 

Timothy Jost, Health Insurance Exchanges in Health Care Reform Legal and Policy Issues, 

Washington and Lee Public Legal Studies Research Paper Series (2009). The bill also revoked 

premium credits from taxpayers who had already been receiving them if their state fell out of 

compliance. See AtTordable Health Choices Act, supra, § 31 04(b )(2). 

6. Health Coverage Tax credit 

Congress also routinely conditions tax preferences on states' enacting certain laws. For 

example, in 2002, Congress created "health coverage tax credits" (HCTCs) under the Trade 

Adjustment Assistance Reform Act 26 USc. § 35. The HCTC pays, through a credit, 72.5 

percent of qualified health insurance premiums for certain taxpayers. These credits bear many 

similarities to the premium-assistance tax credits created by the PPACA in Section 36B. For 

example, like Section 36B, Section 35(b) uses a concept called a "coverage month" to set 

eligibility rules for the tax credits it creates. In particular, 26 US.c. § 35(e)(2) conditions 

eligibility for certain individuals on whether states have enacted laws ensuring that their 

coverage meets certain requirements. See, e.g., Congr. Res. Serv., Health Coverage Tax Credit 

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OtTered by the Trade Act of 2002 at ii (January 31, 2008), 

http://wlstorage.net/file/crsIRL32620.pdf ("The HCTC can be claimed for only 10 types of 

qualified health insurance specified in the statute, 7 of which require state action to become 

effective"); Congr. Res. Serv, Health Coverage Tax Credit (January 5, 2011), 

http://www.taacoalition.com/si tes/defau I tlfil es/HCTC. pdf 

7. Health Savings Accounts 

Since 2004, Congress has allowed qualitied individuals to make tax-free contributions to 

health savings accounts (HSAs), but conditioned those tax benefits on states enacting certain 

laws. 26 USC § 223(c)(2). Prof Jost explains: 

HSAs received federal tax subsidies only when the HSAs were 

coupled with high deductible health plans. These tax subsidies 

were only available, thereforeL] in states where high deductible 

plans were permitted. This in turn meant that some states had to 

repeal or amend laws limiting plan deductibles. Most states that 

had provisions limiting high deductible plans quickly fell into line, 

although a few did not, at least initially. 

Timothy Jost, State-Run Programs Are Not A Viable Option For Creating A Public Plan (Jun. 16, 

2009). 

8. Small Business Tax Credits 

As noted above, in the 1 10th and lllth Congresses, a bipartisan group of senators, 

including members of the Finance Committee, sponsored legislation that would create tax credits 

for certain small businesses. The bills explicitly conditioned tax credits on states creating health 

insurance Exchanges for small businesses, including the self-employed. S. 2795, supra; S. 979, 

supra. Senator Baucus initially used these bills as a model for the small-business tax credit in the 

Finance Committee bilL 

28 
144 

9. A "Public Option" 

Finally, the Finance Committee's May 2009 "Description of Policy Options" document 

proposed encouraging states to establish their own "public option" health plans to compete with 

private insurers. As a means of encouraging states to create their own "public option," Prof Jost 

again proposed that Congress condition tax credits on state compliance: "Tax credits could be 

offered to subsidize the purchase of insurance, but only in states that implemented a public 

program." Timothy S. Jost, State Run Programs Are Not A Viable Option For Creating A Public 

Plan (June 16, 2009), 

http://law.wlu.eduideptimageslFaculty/Jost%20State%20Run%20Programs. pdf 

CONCLUSION 

Many provisions of the PP ACA have not worked out the way its supporters had hoped. 

See. e.g, PPACA Implementation Failures: Answers from HHS Before the Energy and 

Commerce Comm., I 13th Congo (2013) (testimony of Sec. Kathleen Sebelius on the failures of 

healthcare.gov). Some provisions of the Act have been struck down in Court, NNB v. Sebeliu.\', 

132 US. at 2600 (striking down mandatory Medicaid expansion). Other provisions have been 

repealed. See, e.g., American Taxpayer Relief Act of 2012, Pub. L. No. 112-240, § 642 (2012) 

(repealing the CLASS Act). See generally Congr. Res. Serv., Enacted Laws that Repeal or 

Amend Provisions of the Patient Protection and Affordable Care Act (ACA); Administrative 

Delays to ACA's Implementation, Memorandum to Hon. Tom Coburn (September 5, 2013), 

www .coburn.senate.gov/publiclindex.cfm ?a~ Files. Serve&File _id~bSe7 aS76-ee 12-4 77f-Sc62-

a9dd9294['i37 (finding Congress has repeatedly amended or repealed discrete provisions of the 

PPACA). As President Obama recently acknowledged, "Obviously, we didn't do a good enough 

29 
145 

job in terms of how we crafted the law." NBC News, Watch Chuck Todd's full interview with 

President Obama (November 7, 2013), http://www.nbcnews.com/video/nbc-news/53492840. 

If supporters believe the PPACA's premium-assistance tax credit eligibility rules are 

flawed, the proper way to repair the statute is through the legislative process. But with this 

regulation, the IRS has arrogated for itself the power to rewrite a federal statute, triggering 

federal appropriations and financial penalties beyond those authorized by the legislature. Such 

"administrative hubris" cannot stand. See Hruflgarl I'. HellSolllh telecommunications, fIlC., 231 

F.3d 791, 797 (11th Cif. 2000). If the IRS can otIer premium-assistance tax credits to those who 

purchase health insurance in federally created Exchanges, there is nothing to stop the IRS from 

offering them to other ineligible categories of individuals, such as households with income below 

100 percent, or above 400 percent, of the Federal Poverty Level, Medicare and VA enrollees, 

workers with employer-sponsored health insurance, undocumented residents, those who 

purchase health insurance plans that do not constitute qualitied health plans, or those who do not 

purchase health insurance "through an Exchange." See, e.g, Sarah Klitl: The Three Things We 

Learned from Today's Obamacare Update, Wash. Post Wonkblog, Nov. 19, 2013 

http://www. washingtonpostcom/blogs/wonkbloglwp/20 13/11/19Ithe-three-things-we-Iearnedfrom-todays-obamacare-update/. As the IRS can identify no textual or other basis for its rule, it 

can provide no limit to the power it asserts here. 

The decision to limit the availability of premium-assistance tax credits to the purchase of 

qualified health insurance plans in Exchanges established by states under Section 1311 mayor 

may not have been a sound policy decision. That is not the question before this Court. The text of 

the PPACA clearly, consistently, and unambiguously provides premium-assistance tax credits for 

the purchase of qualified health insurance in Exchanges established by states under Section 1311, 

30 
146 

and only in such Exchanges. The remainder of the PPACA's text and legislative history fully 

support the plain meaning of the text. As a result, the IRS lacks the authority to provide for tax 

credits in federally facilitated Exchanges 

November 27,2013 

OF C01JNSEL: 

Andrew M. Grossman 

BakerHostetler LLP 

1050 Connecticut Ave, N.W., Suite 1100 

Washington, D.C. 20036 

(202) 861-1697 

agrossman@bakerlaw.com 

31 

Respectfully submitted, 

/s/ Mark W. DeLaquil 

Mark W. DeLaquil 

BakerHostetler LLP 

1050 Connecticut Ave., N.W., Suite 1100 

Washington, D.C. 20036 

(202) 861-1527 

mdelaquil@bakerlaw.com 

Attorneysfor the Amici Curiae 
147 

ATTACHMENT A 

TJNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

JACQUELINE HALBIG, et aI., 

Plaintiffs, 

v. 

KATHLEEN SEBELIUS, eta!., 

Defendants. 

DECLARATION OF DOUGLAS HOLTZ:EA.KIN 

I; Douglas Holtz"Eakin, do hereby declare: 

L From 2003·2005. I was the sixth Direct()r of the non-partisan Congressional 

Budget Office (CBO), which provides budgetary and policy analysis t() the V.S. Congress. 

During my tenure, CBO assisted Congress as it addressed numerous policies-notably the 

Ivfedical'e prescription drug bill (MMA) and its budgetary consequences. 

2. Cummtly, r am President oft11e American Action Forum and most recently was a 

Commissioner on the congressionally-chartered Fina... lCial Crisis Inquiry Commission. 

3. During 2001 ... 2002, I was thcChief Economist of th.e President's Council of 

Economic Advisers (where r had also served during 1989 ... 1990 as a Senior SlaffEconomist) 

4. At various times, I have held positions in several Washington-based think tanks, 

including the Peter G. Peterson Institute filT lntemational Economics {2007-2DORj, the Maurice 

R. Greenberg Center for Geoeconomic Studies, and the Couhcil on Foreign Rclatio.ns (2006). I 

also. have been a visiting Fellow at the American Enterprise Institute, Heritage Foundation, and 

American Family Business Fo.undation. 
148 

5. I have a distinguished international reputation as a scholar doing research in areas 

of applied economic policy, econometric methods, and entrepreneurship, including academic 

appointments at Columbia University in 1985 aJ1d Syracuse University from 1990 to 2001. At 

Syracuse, I became Trustee Professor of Economics at the Maxwell School, Chairman of the 

Department of Economics and Associate Director of the Center for Policy Research. From 1986 

to 2001, I served as a Faculty Research Fellow and Research Associate at the National Bureau of 

Economic Research. 

6. I am recognized as one of the country's leading experts 011 fedcral budget and lax 

policy, national h"al1h care reform policy, and CEO's practices and procedures tor esiimating the 

budgetary costs of proposed congressional legislation. 

7. My work r!;.'quires me to lll1<lersland and explain the workings <\l1d requirements of 

the congressional rules for budget reconciliation. 

It The purpose of budget reconciliation is to change substantive law so that revenue 

and maJ1datory spending levels are brought into line with budget resolution policies. 

Reconciliation generally has been used to reduce the deficit through spending reductions or 

revenue increases, or it combination of the two 

9. In the case of the Patient Protection and Affordable Care Act (PPACA), enacted 

on March 23, 2010, an accompanying law, the Health Care and Education Reconciliation Act 

(llCERA), enacted on March 30, 2010. utilized budget reconciliation procedures to ensure initial 

passage of Pi' ACA and change a number of ptovisions in tha[ previous law. 

O. Amici have asked me to examine the procedural context in which those two laws 

were enacted and to comment on whether a hypothetical scenario could be plausible and. possible 

under Senate hudget mles at that time. The issue is: If congressionallea.ciers were concerned that 

2 
149 

l'PACA did not authorize premium assistance tax credits for coverage purchased through health 

insurance Exchanges established by Ihe federal government, and wcre worried that such federal 

Exchanges would be needed because some states would fail to establish their own Exchanges, 

what is the likelihood they could have used HCERA to Rmend Pl'ACA to provide that premium 

assistance tax credits would be available to enrollees in federal Exchanges? 

11. To be clear, I am not commenting on what the Senate originally intended 

regarding this issue When it passed its final, revised version of HR. 3590 on December 24, 2009, 

which eventually became the final text of the PPACA that was approved by ihe House of 

RepresentatiYes on March 21, 2010, and signed into law by President Obllma on March 23, 2010. 

Nor am r commenting on the [lroper legal construction or that statute. In~tead, 1 have been asked 

to answer it different que~·tioll: If congressional leaders had become aware 011, shortly before, or 

after Afarch 23. 2() 10, that PP ACA did not authmize tax credits in Exchanges establisbed by the 

f(~deml government, and were concerned that federally established Exchanges would be required 

becauso some states would refuse to establish their own Exchanges, would they have been able 

to use the HCERA to amend the FPACA to authorize tax credits through federal Exchanges 

given Senate budget reconciliation rules and a united 41-vote opposition? In particular, would 

CIlO have been required ±lrst to "rescore" the higher budgetary costs of such a proposal, in light 

of a new budgetary baseline created by such informarion? 

12. The answer is that the Senate in particular would have been extremely limited, 

and for practical purposes essentially blocked, in trying to "fix" through the budget reconciliation 

pmCe$5 any possible problems it (hypothetically) migbt bave discovered regarding lack of 

authority for distributing fuderal premium a~sistance tax credits through federal Exchanges. 
150 

13. Such efforts almost cerlainly would have been challenged through points of order 

made during consideration of the reconciliation biLl on the Senme floor, under well-established 

precedents for enforcement of tbe "Byrd mles·' for budget reconciliation, as well as the other 

pay-as-you-go budgetary rules adopted by bOlh me Senate and House in recent years. In 

particuIar, any acknowledgment by congressional leaders that some states ".'Ould not create 

Exchanges would have triggered the need for CBO to "rescore" iis budget baseline after 

enactment of PPACA. This new baseline would have found that the new law actually cost 

potentially hundreds of billions of dollars less than previoWi~Y scored for the period from FY 

2010 tlrrough FY 2019. Relative to this new baseline, the HCERA'f; attempt to authorize tax 

credits through federal Exchanges would increase outlays and deticits by potentially hundreds of 

billions of dollars, exposing the HCERA to a potential Byrd-rule jX,ill( of order. Had 

congressional leaders signaled that the PPACA gives states the authority to velo major 

provisions of !he Jaw, and at the same time given opponents of the law Ihe means to block !heir 

eITort to strip states of that veto power, it is almost certain that opponents of the law would have 

made a Byrd-rule point of order. 

14. The Senate in particular would have been hard pressed to overcome a point of 

order under the Byrd rules by opponents of the legislation. The very reason thai b\ldg~t 

reconciliation through HCERA was attempted in March 2010 was !bat Senate Democrats no 

longer could obt'lll1 60 votes in favor of any changes in the PPACA through regular floor 

procedures. That same I11l1TIber of votes would be needed to overcome either such a point of 

order or II ruling of the presiding officer of the Senate that the Byrd rules had been violated (for 

increasing the budget deficit in budget reconciliation; either in the lO-year budget window .frOl1l 

FY 201 0-2019, or in the 11 th year jt1.~t beyond it-in fY 2020). 
151 

f 

15. Tbe only othel option available to Senate backers of such a change in the 

PPACA's final spending and revenue levels-through budget reconciliation-\vould have 

retluired coming up with hundreds of billions of do!!ars in "offsetting" budget savings elsewhere 

from FY 20lO through FY 2019. Based on my experience in analyzing for several decades not 

only congressional budget policy but also the political and economic context in which it must 

operate,. I conclude that the likelihood of pursuing, let alone succeeding in, that legislative path 

was viltually zem. This would h.'we required t.hem to find and enact potentially hundreds of 

hillions of dollars in political pain (i.e., new revcnue or spending reductions) with no 

corresponding benefits. 

16, Therefore, I find that lhe HCER", could not practically amend any lack of 

authority for tax credits in iederally established health insurance exchanges. With respect to the 

authority of such Exchanges, the House and Senate had no practic,al alternative to enacting the 

provisions included in the original Scnate blll, H.R. 3590, which became the tinai version of the 

PPACA, 

1 declru:e under penalty of peljury that the foregoing is true ;md correct to the best of my 

knOWledge. Executed on this ~ day of November 2013, 

Douglas Holtz-Eakin 

5 
152 

Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Member, Committee on the Judiciary 
153 

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155 

., 

CATC> AT LIBERTY 

OCTOBER Z4, 2013 8:57AM 

The Latest Obamacare Case on 

Appeal 

Bg ItVA SHAplRQund ~ 

Last year's Supreme Court dedsKm holding that Obamacare imposes a tax ~ on people 

who don't buy health insurance c.:une as IT surprise to most Americans. The law doesn't 

can it a "tax,· but a "penalty ,- and the law's authors and supporters never called it a 

tax ~ when it was enacted. But Chief Justice Roberts and the four liberal justices held 

that unlike the penalty in the 1922 case of Baileu I), Drexel Fumitua: - which was 

disguised !IS a tax - what the Patient Protection and Affordable Care Act impooed 

looked like a penally hut was really a ta.'(. 

Oneofthe problems with that -Idl unaddressed in the NFlB u. Sebe/iys ruling - is 

that the Constitution requires "all. bills (or raising revenue~ to · originate" in the House 

of Representatives. Iflhe PPACA imposes a tax, then it fails t his requirement because 

it originated in the Senate. 

That's the argument being made in t he case of Mall Sissel, a veteran and small 

business owner rl!prl!scntoo by the PacifIC I.&~al Foundation (including one of us, 

Sandefur). In a brjefliled yesterdax in the U.S. Court of Appeals fur the D.C. Circuit, 
156 

Sissel'. lawyers a rgue that the Obamacare "tax" originated in the Senale in violation of 

Constitutional standards. 

There's little case law interpretin.~ tbe Constitution's Origination C1ause. T he leading 

case is 1911 's Flint u. Stone Trac.u...Ci:zQ2.. which held that the Qause wasn't violated 

when the Senate amended a ou..~e-pa8.5ed bill to add a true t o it. The Court held that 

the Senate - which has the constitutional authority to "propose or concur with 

II,mendments~ to House-passed rl!venue bills - was allowed to do this because. lhat 

Senate amendment · was germaM to the subject-mailer of the hill.- It's hard 10 see 

how the "gerrnaneness· requirement was satisfied in the PPACA's case, though. That 

law originated in the SeDate, which took a House-passed bill on a completely different 

subject (providing inoentive.s (or veterans 10 buy their first homes). deleted its entire 

text, and replaceil it with the bill that became Ohamacare. Th.is ·shell hill- tactic is not 

uncommon in legislatures, but thl! Supreme Court has never held that it satisfies the 

origination requirement. A federal lrial court threw Sissel's case Oil! jn ,Iulle. on the 

grounds that the Senate's "amendment" satisfied the "gcrmaneness· rule because the 

original House bill had something to do with taxes. But if the standard is that lax, the 

Orlgina_tion Clause would mean ruxhing: the Senate oooid originate t/\Xes at any time 

when they have some extremely broad similarity with some other bill the House has 

passed. In an age ofbaxcar-sized omnibus bills. that would be easy to do. 

That trial ooort also said that the Origination C1ause doesn't apply to the Obamacare 

lax anyway. because, while it's a true, it ifi n't a bil1 for raising re ... enu~ · There are 

precedents t hat have exempled (:e.rhtin kiIxb; of taxes from the Origination Clause 

because they're not reven\.le measures, but are instelld earmarked for fOlD!: snecifis; 

fuw1. or are actually just enfOrcement penalties meant 10 ensure compliance with 

another Jaw. But funds raised by the PPACA aren't earmarked - they go ioto the 

genera! Treasury, 10 be spent as Congress chooses. And in NP1B, Chief Justice 

Roberts's opinion specifkally held that the provision at issue is not II peooty, but only a 

tax. It's the reverse of Drexel Furniture. 

There lire reasons why thejudge .. made exoeptioos to the Origination Clause shouldn't 

apply here. But tbere's a broader reason why the courts should be reluctRut to exempt 

Obamacarc. In their decision L'lSt year, the majority of justices expressed a de.'I"irc to 
157 

preserve what they saw as democratic lawmaking. ~We possess neither the expertise 

nor the prerogative to make policy judgme nu ~ wrote Roberts. "Those decisions are 

entrusted to our Nation's elected leaders, who can be thrown out of office nthe people 

disagree with them. II is not our j'ob to protect the people from t he consequences of 

their political choices." whatever you might think of t his idea, if the courts are 

ooncerned about our democratic process, they should not hesitate to enforce a 

constitutional provision designed to preserve democratic accountability. 

The Origination Clause was writt,~n to ensure that the power to tax - government's 

most pervasive, dangerous, and e:asily abused power - was kept close to the people's 

chamber: the House of Representatives, eJected every two years directly by local 

districts. Had Obamacare been pt:operly proposed in the House as a tax on not buying 

insurance in the first place, it wOl'lldn't have survived more than a few days - and as it 

stands the backlash against the law's enactment swept out the House majority that 

supported that Jaw. If the courts are concerned with empowering the will ohhe voters, 

that's an the more reason that procedUral requirements like the Origination Clausethat help ensure atcounlability and transparency, and keep the taxing power as close 

to the people as possible - are fully enforced. 

Dp;~): GoYemm!!Ol .nd Pp!j!ig, I:IUIIh Carr Ii We!fare, LAW and Ciy1l UI!m1n 

rag.: Hea110 Cue, Obamag !,¢, ~mIll, Originalipn ClalAe,.fI.E 

t( .. >i 

This \»Oflt by Cata lrutltutt i5 ijcen5eei meier a CrealiYg Commgm Atldbyt!prHionCpmmerd!l!' 

SbareAl'kg 3 Q lJo!JQfled Lictnsg. 

P RINTEO f~OM CATO O~G 
158 

[ORAL ARGl)MENT NOT YET SCHEDULED] 

NO. 13-5202 

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

MATTHEW SISSEL, 

PlaintijFAppellant, 

v 

u.s. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al. 

De(endanls-Appellees. 

On Appealjrom Ihe United Slales Dislricl Courl 

for the District of Columbia 

Honorable Beryl A. Howell, Dislricl Judge 

BRIEF OF AMICI CURIAE U.s. REPRESENTATIVES TRENT FRANKS, 

MICHELE BACHMANN, JOE BARTON, KERRY L. BENTIVOLIO, MARSHA 

BLACKBURN, JIM BRIDENSTINE, MO BROOKS, STEVE CHABOT, K. MICHAEL 

CONAWAY, JEFF DUNCAN, JOHN DUNCAN, JOHN FLEMING, BOB GIBBS, LOUIE 

GOHMERT, ANDY HARRIS, TIM HUELSKAMP, WALTER B. JONES, JR., STEVE 

KING, DOUG LAMALFA, DOUG LAMBORN, BOB LATTA, THOMAS MASSIE, 

MARK MEADOWS, RANDY NEUGEBAUER, STEV AN PEARCE, ROBERT 

PITTENGER, TREY RADEL, DAVID P. ROE, TODD ROKITA, MATT SALMON, 

MARK SANFORD, DAVID SCHWEIKERT, MARLIN A. STUTZMAN, LEE TERRY, 

TIM WALBERG, RANDY K. WEBER, SR., BRAD R. WENSTRUP, L YNE A. 

WESTMORELAND, ROB WITTMAN, AND TED S. YOHO, 

IN SUPPORT OF APPELLANT SEEKING REVERSAL 

Jacki Pick 

2711 Jefferson Davis Hwy 

Suite 200 

Arlington VA 22202 

iacki@tesianet 

(703) 418-0287 

OJ Counsel 

Date: November 8, 2013 

Joseph E Schmitz 

CounselofReeol'd 

JOSEPII E. SCIIMITZ, PLLC 

5502 Parkston Road 

Bethesda, MD 20816 

lli-chmitzC(Djespllc.com 

(703) 992-3095 

Paul D. Kamenar 

1629 K Street, N.W. 

Suite 300 

Washington, DC 20006 

Paul. kamenar(wglnaii.com 

(202) 603-5397 

Counsel for Congressional Amici Curiae 
159 

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES 

A. Parties, Intervenors, and Amici. 

Pursuant to District of Columbia Circuit Rule 28( a)( 1), the undersigned 

counsel certifies that the following Congressional amici curiae have joined tins 

brief: 

1. Rep. Trent Franks 

2. Rep. Michele Bachmann 

3. Rep. Joe Barton 

4. Rep. Kerry L. Bentivolio 

5. Rep. Marsha Blackburn 

6. Rep. Jim Bridenstine 

7. Rep. Mo Brooks 

8. Rep. Steve Chabot 

9. Rep. K. Michael Conaway 

10. Rep. Jeff Duncan 

11. Rep. John Duncan 

12. Rep. John Fleming 

13. Rep. Bob Gibbs 

14. Rep. Louie Gohmert 

15. Rep. Andy Harris 

16. Rep. Tim Huelskamp 

17. Rep. Walter B. Jones, .If. 

18. Rep. Steve King 

19. Rep. Doug LaMaifa 

20. Rep. Doug Lan1born 

21. Rep. Bob Latta 

22. Rep. Thomas Massie 

23. Rep. Mark Meadows 

24. Rep. Randy Neugebauer 

25. Rep. Stevan Pearce 

26. Rep. Robert Pittenger 

27. Rep. Trey Radel 

28. Rep. David P. Roe 

29. Rep. Todd Rokita 

30. Rep. Matt Salmon 
160 

31. Rep. Mark Sanford 

32. Rep. David Schweikert 

33. Rep. Marlin A. Stutzman 

34. Rep. Lee Teny 

35. Rep. Tim Walberg 

36. Rep. Randy K. Weber, Sr. 

37. Rep. Brad R. Wenstrup 

38. Rep. Lyne A. Westmoreland 

39. Rep. Rob Wittman 

40. Rep. Ted S. Yoho 

Undersigned counsel further certifies that, to the best of his knowledge, all 

the parties, intervenors, and other amici appearing before the district court and in 

this court are listed in the Opening Brief ofthe Appellant, Matthew Sissel. 

B. Ruling Under Review. 

Undersigned counsel further certifies that, to the best of his knowledge, the 

ruling lUlder review is also set forth in the Opening Brief of the Appellant, 

Matthew Sissel, and is incorporated by reference herein. 

C. Related Cases. 

Undersigned counsel further certifies that, to the best of his knowledge, all 

related cases, as defined by Circuit Rule 28(a)(1 )(C), are set forth in the Brief of 

the Appellant, Matthew Sissel, and are incorporated by reference herein. The 

undersigned counsel would add that in American Physicians & Surgeons, Inc., and 

Alliancefor Natural Health USA v. Sebelius, No. 13-5003 (D.C. Cir.), the cOlUlsel 

for Appellants in that appeal identified this appeal and Liberty Univ., Inc. v. Lew, 

No. 10-2347 (4th Cir.), as cases in which the plaintiffs-appellants seek to raise a 
161 

variant of one ofthe merits issues - namely, whether the Patient Protection and 

Affordable Care Act violated the Origination Clause ofthe U. S. Constitution - that 

American Physicians & Surgeons, Inc., and Alliance for Natural Health USA ask 

this Court to address in No. 13-5003. 

D. Grounds for Filing Separately. 

Undersigned counsel further certifies that the separate-brief requirement set 

forth in Circuit Rule 29(d) does not apply to a governmental entity. 

/s/ Joseph E. Schmitz 
162 

TABLE 01<' CONTEN1'S 

GLOSSARy ..... 

INTERESTS OF AMICI CURIAE .... 

BACKGROUND AND SUMMARY OF ARGUMENT .. 

ARGUMENT .... 

....... iii 

.. ....... 1 

.. ....... 2 

.. ...... .4 

I. THE ORIGINATION CLAUSE IS A PROVISION FOR THE SEPARATION 

OF POWERS WITHIN THE LEGISLATIVE BRANCH THAT SAFEGUARDS 

LIBERTY 

A. The Origination Clause Embodies a Foundational Principle 

B. The Origination Clause Was a Precondition to the Ratification of the 

........ .4 

......... 6 

Constitution.... .. ....... 8 

C. The Origination Clause Is a Substantive Structural Protection, Not an 

Accounting Gimmick. ......... 9 

II. THE HISTORY AND PURPOSE OF THE ORIGINATION CLAUSE 

COMPEL THIS COURT TO CONCLUDE THAT THE MASSIVE TAXES 

THAT ORIGINATED AS THE "SENATE HEALTH CARE BILL" VIOLATED 

THE SEPARATION OF POWERS BETWEEN THE TWO CHAMBERS ......... 10 

A. Despite The Direct Election Of Senators Under The Seventeenth Amendment, 

The Senate Does Not Represent The People In The Same Way As Does The 

House... .. ..... 11 

B. The Framers Chose The House To Originate Taxes Because The House Is 

Accountable To The People Every Two Years, While Senators Are AccOlmtable 

Only Every Six Years ........................................................................................... 13 

lll. THE "SENATE HEALTH CARE BILL," WHiCH iMPOSED THE 

LARGEST TAX INCREASE IN AMERICAN HISTORY, WAS 

INDISPUTABLY A "BILL FOR RAISING REVENUE" UNDER THE 

ORIGINATION CLAUSE ....................................................................................... 14 

A. The "Senate Health Care Bill" Is Designed to Raise Billions in Revenue for 

the General Treasury.. .. ..... 15 

B. The "Purposive" Test Has No Basis in the History ofthe 

Origination Clause ..... .. ..... 15 

1. Early American Experince with Taxes. .. ..... 16 

2. Modification ofthe Proposed Origination Clause .... .. ..... 17 
163 

C. Munoz-Flores Does Not Support The Lower Court's "Purposive" Test With 

Respect To The Billions Raised Under ACA. ...................................................... 18 

IV. EVEN IF THE "SENATE HEALTH CARE BILL" ORIGINATED IN THE 

HOUSE, THE SENATE AMENDMENT GUTTING THE SIX-PAGE HOUSE 

TAX CREDIT BILL AND REPLACING IT WITH THE 2,047 PAGE ACA 

IMPOSING $675 BILLION IN TAXES WAS AN IMPERMISSIBLE, 

NONGERMANE AMENDMENT .......................................................................... 21 

A. The "Senate Health Care Bill" Originated In The Senate .............................. 21 

B. The "Senate Health Care Bill" Was Not Gennane To The House Bill .......... 22 

I. The Germaneness Issue is Justiciable ........................................................... 22 

2. The "Senate Health Care Bi11" Was Not a Permissible Amendment to H.R. 

3590, a Bill Providing Tax Credits To Veterans.. . ..... 23 

a. The House Bill Was Not a Billfor Raising Revenue ...... 23 

b. Even ({The Original H.R. 3590 Were a Billfor Raising Revenue, The 

",','enate Health Care Rill" Was an Impermissible ,','ubstitute Amendment To The 

House Bill.. ..... . ...... 25 

CONCL USION. . ...... 29 

BRIEF FORM CERTIFICATE 

ADDENDUM A - H.Res. 153 

ADDENDUM B - H.R. 3590 

ADDENDUM C - List ofACA Tax Hikes 

ii 
164 

TABLE 01" AUTHOIU1'lES 

Constitutional Provisions: 

*US. Canst., Art. I, §7, cl. 1 (Origination Clause) .......... 1-10, 14-21,23-25,28,29 

US. Canst., Art. I, §8, cl. 1 (Taxing Power Clause) ....... 18 

U.S. Canst., Art. I, §8, cl. 7 (Presentment Clause) .. . ...... 17 

US. Canst., Amend. X ......................... . . ...... 5 

U.S. Canst., Amend. XXVII ... 11,12 

British Bill of Rights, Will. & Mary, Sess. 2, c. 2., §4 (1688) ................................. 6 

Magna Carta (1215) ............................................................................... 6 

Massachusetts Constitution of 1780 . . ...... 16 

Cases: 

Baker v. Carr, 369 US. 186 (1962) .. . ...... 22 

Baral v. United States, 528 US. 431 (2000) ........................................................... 24 

'"Flint v. Stone Tracy Co., 220 US. 107 (1911) 

Hubbardv.Lowe,226F.135(S.D.N.Y.1915) 

IN.S. v. Chadha, 462 U.S. 919 (1983) ...... . 

Millard v. Rober/s, 102 U.S. 429 (1906) .... 

Twin City Bank v. Nebeker, 167 US. 196 (1897) .... 

.... 25,26,27 

......... 5 

. ...... 27 

. ...... 19 

....... 19 

NFIB v. Sebelius, 132 S. Ct. 2566 (2012) ..................................................... 5, 18,23 

Pollock v. Farmers' Loan & Trust Company, 157 U.S. 429 (1895), af/'d on reh'g, 

158 U.S. 601 (1895)... . ...... 10 

United States v.James, 26 F. Cas. 577 (C.C.S.D.N.Y. 1875) ..... . ...... 17 

iii 
165 

United States v. Munoz-Flores, 495 U.S. 385 (1990) ............. 4, 5, 16, 18, 19,20,23 

Statutes: 

26 U.S.C. §5000A ......... 2 

An ACT against raising of Money within this Province, without Consent of the 

Assembly (1650), reprinted in 75 Thomas Bacon, The Laws of Maryland ch. 

XXV, 37-38 (1765) ........................................................................................... 7,26 

Payne Aldrich Tariff Act of 1909 6, 36 SlaL II) ....... 

Patient Protection and Affordable Care Act, 

Pub. L. 111-148 (2010) 

Sentencing Refoml Act, 18 U.S.C. §30 13 .. 

Other Authorities: 

...... .27 

...... 1-3, 12-15, 20-24, 27 

.. ..... 20 

A Legislative History of the Affordable Care Act: How Legislative Procedure 

Shapes Legislative History, 105:2 LAW LIBRARY JOURNAL (2013)... .. ..... 29 

Asher Crosby Hinds, Parliamentary Precedents of the House of Representatives of 

the United States (1899) ....................................................................................... 25 

Asher Crosby Hinds, Parliamentary Precedents of the House of Representatives of 

the United States (1907) ...... .. ..... 26 

H. Res. 153 (l13lh Cong., 1'l Sess.)(Apr. 12,2013) .. .2,23 

http://blog.heritage .org/20 J 0/03/ J O/video-of-the-week-we-have-to-pass-the-bill-soyolt-can~find-out-what-is-in-it/ ...... .. ..... 23 

http://memory.zoc.gov/ammem/amlaw/lwhbsb.htm ................................................. 22 

http://www.cbo.gov/publication/24998 ...... . .. ....... 3 

http://www.reid.senate .gov/newsroom/111809 _healthcare .cfm. .. ....... 2 

iv 
166 

James Madison, Notes on the Debates in the Federal Convention of 1787 (New 

York, Norton & Company Inc., 1969) ................................... 4,8,9,10,11,13,17 

Nicholas Schmitz & Priscilla Zotti, The Origination Clause: Meaning, Precedent, 

and Theory from the 12th to 21st Century (August 12,2013), forthcoming in 

BRITISH JOURNAL OF AMERICAN LEGAL STUDIES (2014) ......... 7 

Noel Sargent, Billsfor Raising Revenue under the Federal and State Constitutions, 

4 Minn. L. Rev. 330 (1919-1920).. .. ....... 6 

Service Member's Home Ownership Tax Act, H.R 3590, 

I111h Congress (2009) ............................................................. 2,3,23,24,27,29 

The Documentary History of the Ratification of the Constitution Digital Edition, 

available at http://rotunda.upress.virginia.edu/foundersIRNCN .... 11, 13, 15 

The Federalist No. 52 (James Madison)..... .. ....... 9 

Tom Cohen, House GOP Launches Shutdown Battle by Voting to Defund 

Obamacare, CNN (September 20, 2013) ....... 14 

William Pitt, On an Address to the Thrown, in Which the Right of Taxing America 

is Discussed, in Robert Cochrane, The Treasury of British Eloquence, 140-41 

Cw.P. Ninm1o, London and Edinburgh, 1877) ....................................................... 6 

v 
167 

GLOSSARY 

Patient Protection and Affordable Care Act ...... . . ................ ACA 

SelVice Member's Home Ownership Tax Act .......................... SMHOTA 

vi 
168 

u.s. Representative Trent Franks is the Chainnan of the House Judiciary's 

Subcommittee on the Constitution and Civil .lustice. As chainnan, Congressman 

Franks is the senior member of the House of Representatives specifically charged 

with jurisdiction over constitutional amendments, constitutional rights, and ethics 

in government among other issues. Along with the other 39 Members of the 

House of Representatives joining this brief, amici all serve as the immediate 

representatives of their constituents in the chamber most accountable to them and 

were constitutionally guaranteed the exclusive prerogative of introducing bills for 

drawing forth a national revenue under the Origination Clause, Article 1, section 7, 

clause 1 of the U.S. Constitution. The Senate of the United States violated this 

constitutional safeguard when it "amended" a House bill designed to reduce taxes 

by substituting the legislative substance of The Patient Protection and Affordable 

Care Act (ACA), which was one of the largest tax increases in American history, 

estimated to raise $675 billion in revenue. The Origination Clause requires that 

such revenue raising bills originate in the House, not the Senate. 

The interests of the amici are in protecting their constitutionally guaranteed 

prerogative and the separation of powers the Origination Clause was meant to 

ensure. Amici are duty bOlmd by their oath of office to "support and defend the 

Constitution" and their unique positions as the exclusive trustees of the original 

exercise ofthe national taxing power. 
169 

To that end, amici Franks and his colleagues have co-sponsored H. Res. 153 

(113t11 Cong., pt Sess.) (Apr. 12,2013) expressing the Sense of the House of 

Representatives that ACA "violates article I, section 7, clause I of the United 

States Constitution because it was a 'Bill for raising Revenue' that did not 

originate in the House or Representatives."i 

BACKGROUND AND SUMMARY OF ARGUMENT 

On October 8, 2009, the House of Representatives unanimously passed the 

six-page "Service Member's Home Ownership Tax Act" (SMHOTA), H.R. 3590, 

111 th Congo (2009), which was intended to reduce taxes by providing a tax credit 

to certain veterans who purchased homes. 2 

The Senate "amended" H.R. 3590 by deleting its entire text and substituting 

the 2,074 page bill which Senate Majority Leader Harry Reid referred to as the 

"Senate Health Care Bill,'" which included 17 specifically denominated revenue 

provisions, including the penalty or "tax" imposed on those non-exempt persons 

who fail to buy a government approved health insurance policy. 26 US.c. 

§5000A4 The Congressional Budget Office estimated that the bill would increase 

revenue by $486 billion between 20 I 0 and 2019, one of the largest tax increases in 

1 See Addendum A. 

2 See Addendum B. 

4 See Pub. L. No. 111-148 §§ 1513,9001-9017, and Addendum C for a list and 

description of all the "tax hikes." 

2 
170 

American history.5 The Senate rehmled the "Senate Health Care Bill" with the 

H.R. 3590 number affixed to it to the House, whereupon it was rushed into passage 

by the Democratic controlled House without a single Republican vote. On March 

23, 2010, the President signed "The Patient Protection and Affordable Care Act," 

Pub. L. 11 1-148 (hereinafter "ACA"). 

The legal arguments in this case are straightforward. The Origination 

Clause of the Constitution, Article I, Section 7, clause 1, provides that "All Bills 

for raising Revenue shall originate in the House; but the Senate may propose or 

concur with Amendments as on other Bills." The "Senate Health Care Bill," which 

is one the largest tax increases in American history, did not originate in the House 

simply by virtue of keeping a House bill number. Amici argue in the alternative, 

that even if it had originated in the House, the Senate's legerdemain of substihlting 

the SMHOTA with the Senate Health Care Bill was not constitutional for two 

reasons: (1) SMHOT A was not a revenue raising measure to which the Senate 

might anlend under the second prong of the Origination Clause and (2) even if it 

were, the total "gut and replace" Senate amendment was not germane to the subject 

matter of the House bill. 

The Origination Clause was a key Constitutional provision upon which the 

FOlmders insisted to protect the American people from confiscatory taxes; they 

5 hll p:/! Wlt'l1} .elm .g.QJ'iQ.lIblication/24998. 

3 
171 

reposed such power to initiate any taxes in the "People's House" to be exercised by 

those representatives closest to the citizens. The Origination Clause thus serves an 

important bulwark to protect the liberty of our citizens. [fthe interpretation of the 

Origination Clause by the court below is not reversed, that Clause will be rendered 

a dead 1 etter. 

ARGUMENT 

I. THE ORIGINATION CLAUSE IS A PROVISION j<'OR THE 

SEPARATION OF POWERS WITHIN THE LEGISLATIVE BRANCH 

THAT SAFEGUARDS UBERTY 

"Provisionsfor the separation of powers within the legislative branch 

are . . . not different in kind .from provisions concerning relations 

between the branches; both sets ofjJrovisions safeguard fiber/yo "6 

The Origination Clause embodies a foundational principle of American 

jurisprudence that otfers a structural constitutional protection against abuses of 

power by the national govenunent. Without its guarantee in the 1787 Convention 

and ensuing ratification debates, our Constitution would not exist, at least not in its 

present fon11: the restriction of the Senate from originating taxes was the 

"comerstone of the accommodation" of the Great Compromise of 1787 which 

satisfied the necessary number of states to ratity the Constitution7 As such, the 

legislation before this Court under Origination Clause challenge not only impacts 

6 United States V. Munoz-Flores, 495 U.S. 385,395 (1990). 

7 Delegate Elbridge Gerry, quoted in James Madison, Notes on the Debates in the 

Federal Convention of 1787, at 290 (New Yark, Norton & Company Inc., 1969) 

[hereinafter Madison]. 

4 
172 

the House of Representatives' prerogatives of amici, but more importantly is a 

fundanlental violation of one of America's most foundational principles: the 

separation of powers within a national government of limited powers and the 

guarantee of no taxation without representation8 

No American court has ever allowed taxes enacted into law in this manner 

and on this scale to become the law of the land. 9 Doing so now would wholly 

disregard and effectively nullifY the plain letter and spirit of the Origination 

Clause. The gravity of the principle at stake, coupled with the Supreme Court's 

most recent Origination Clause pronouncement that the "Court has the duty to 

review the constitutionality of [such] congressional enactments"10 compels this 

Court to reaflirm the plain b'1larantee in the Origination Clause that no legislative 

body or govenmlent official but the inmlediate representatives of "tlle People" can 

constitutionally originate the imposition oftaxes. 

8 The Tenth Amendment provides for a separation of powers between the national 

and State govennnents. Amici submit that the rich Tenth Amendment 

jurisprudence relied on by the Supreme Court in NFlB v. Sebelius, 132 S. Ct. 2566 

(2012), which struck down the Medicaid provisions by a vote of 7 -2, provides a 

rule of construction on how this Court should interpret the Origination Clause: any 

ambiguities of its provisions should be interpreted in favor of protecting liberty 

'! On the contrary, the excise tax on Cotton Futures Contracts was struck down for 

violating the Origination Clause. See Hubbard v. Lowe, 226 F. 135 (SD.N.Y. 

1915). 

10 Munoz-Flores, 495 U.S. at 391. 

5 
173 

A. The Origination Clause Embodies a Foundational Principle 

"fThe} distinction be/ween legislation and taxation is essentially 

necessary to liberty. . .. The Commons of America. represented in 

their several assemblies, have ever been in possession of the exercise 

of this their constitutional right of giving and granting their own 

money. They would have been slaves if they had not enjoyed iI. "I] 

Few clauses in our Constitution have such a rich and clear historical 

significance as the Origination Clause. With its origins in the Magna Carta, 

the Commons of England fought to preserve and strengthen this right for 500 years 

before the principle was fimlly solidified by the late 17th Century in English 

Parliamentary custom.12 No principle's neglect has been as responsible for 

undennining the legitimacy of English speaking governments as the neglect by 

kings, legislatures, and courts alike of the Origination principle. 

To illustrate the strength of the point, consider the decapitation of King 

Charles I in 1649 following the 30 Years War, and the deposing of King James II 

following the Glorious Revolution of 1688. These dramatic acts, carried out 

during America's colonial period, resulted in the British Bill of Rights in the late 

]] William Pitt, On an Address to the Thrown, in Which the Right (if Taxing 

America is Discussed (December, 17, 1765) (Protesting the Stamp Act on behalf of 

the colonists), in Robert Cochrane, The Treasury of British Eloquence, 140-41 

(W.P. Nimmo, London and Edinburgh, 1877). 

12 Noel Sargent, Billsfor Raising Revenue under the Federal and State 

Constitutions, 4 Mi1U1. L. Rev. 330,334 (1919-1920) ("In the British Parliament, in 

1678, it was settled that: (1) 'all bills for purpose of taxation, or containing 

clauses imposing a tax, must originate in the House of Commons and not in the 

House of Lords'" (emphasis added)). 

6 
174 

1680s, which contained one of the early iterations of the Origination Clause13 The 

principle of taxation only by the ilmnediate representatives of the people was so 

firmly rooted in the English tradition, that its implementation on the American side 

ofthe Atlantic was nearly universal in colonial and early state legislatures. 

Where Royal charters did not explicitly guarantee the early American 

colonists this prerogative, they seized it. Under the various names of "House of 

Delegates," "Burgesses," "COn1l110nS," or "Representatives," the colonists' lower 

houses - those closest to the people - were commonly vested with the exclusive 

right of originating taxes. 14 

Our Founders - often the same individuals who worked to draft the state 

constitutions with Origination Clauses - enshrined this central procedural 

limitation on goven1l11ental power to "originate Bills for raising Revenue" in 

Article 1, §7, of our current Constitution15 

13 See British Bill of Rights, 1 Will. & Mary, Sess. 2, c. 2., § 4 (1688)) (''That 

levying money for or to the use of the crown, by pretense of prerogative, without 

grant of parliament, for longer time, or in other manner than the same is or shall be 

granted, is illegal."). 

14 See, e.g., "An ACT against raising of Money within this Province, without 

Consent ofthe Assembly" (1650), reprinted in 75 Thomas Bacon, The Laws of 

Maryland ch. XXV, 37-38 (1765). 

15 For a more detailed account of the origins of the Origination Clause, see 

Nicholas Sclll1litz & Priscilla Zotti, The Origination Clause: Meaning, Precedent, 

and Theoryfrom the 12th to 21st Century (August 12,2013), forthcoming in 

BRlTISH JOURNAL OF AMERlCAN LEGAL STUDIES (2014) (copy on tile with 

undersigned counsel). 

7 
175 

B. The Origination Clause Was a Precondition to the Ratification of the 

Constitution 

"In short the acceptance of the plan [U.S. Constitution} will inevitably 

fail, if the Senate be not restrainedfrom originating Money bills ... 16 

The principle behind the Origination Clause -- sometimes phrased as "No 

Taxation Without Representation" -- was the moral justification for our War of 

Independence. With this war for freedom and liberty in mind, the Origination 

Clause of our Constitution was written; and without it at the core of the "Great 

Compromise of 1787," the 13 original States would never have agreed to ratifY the 

Constitution. 

The primary dividing issue between the delegates to the Constitutional 

Convention of 1787 was the question of how to resolve the method of 

representation in the upper chamber. The small states preferred to retain the equal 

representation they had enjoyed under the Articles of Confederation, while the 

large states wanted to shift the national legislature to a proportional representation 

of the American population. No disagreement threatened the success of the 

Convention and the new Constitution more than this one. After a month of heated 

debate and threats of secession, the delegates finally agreed to the Great 

Compromise of 1787: a bicameral legislature with equal representation of States 

in the upper branch, and proportional representation of the nation in the lower 

16 Madison, supra, at 445 (Delegate Elbridge Gerry arguing that the Convention 

delegates would not sign, and the states would not ratifY any new federal 

Constitution that did not restrict the Senate from originating taxes). 

8 
176 

branch. That Great Compromise was only made possible by agreement of both 

sides to restrict the upper branch from originating money bills. 17 

C. The Origination Clause Is a Substantive Structural Protection, Not 

an Accounting Gimmick 

Our Founders were justifiably concemed that the power to raise and levy 

taxes should originate in the People's HOLlse, whose Members are closest to the 

electorate, with two-year terms. IS The Senators, by contrast, sit unchallenged for 

the better part of a decade, do not proportionally represent the American 

population, and already enjoy their own unique and separate Senate powers 

intentionally divided by the Founders between the two chambers. 

On an even more basic level, a Senate unrestricted from the confines of the 

Origination Clause would blur the fundamental separation of powers within the 

legislative branch. The power of the purse was unquestionably reposed in the 

People's House, and it has remained in that chamber throughout our history. lfthe 

Senate can introduce the largest tax increase in American history by simply peeling 

offthe House number from a six-page mrrelated bill which does not raise taxes and 

pasting it on the "Senate Health Care Bill," and then claim with a straight face that 

the resulting bill originated in the House, in explicit contravention of the supreme 

law ofthe land, then the American "rule oflaw" has become no rule at all. 

17 See id. 

18 The Federalist No. 52 (James Madison). 

9 
177 

n. THE HISTORY AND PURPOSE OF THE ORIGINATION CLAUSE 

COMPEL THIS COURT 1'0 CONCUlDE THAT THE MASSIVE 

TAXES THAT ORIGINATED AS THE "SE~ATE HEALTH CARE 

BH,V' VIOLATED THE SEPARATION OF POWERS m~T\VF:EN TIlE 

TWO CHAl\U1ERS 

Even if one views the Constitution as an evolving compact, a modern 

application of Origination Clause principles to today's political reality and 

circumstances would favor re-affimlance of the Origination Clause as a 

meaningful check on abuses of power. The dangers to the liberty and property of 

Americans from Senate transgressions of the Origination Clause are greater today 

for several reasons, not the least of which is that the Constitution was amended in 

1913 substantially to expand Congress' power to create a federal income tax after 

the Supreme Court could not find that confiscatory power in the Constitution19 

Now that the taxing power has been greatly expanded, the courts should be 

increasingly vigilant in applying applicable Constitutional limitations, including 

the Origination Clause. 

At the 1787 Constitutional Convention, George Mason stated the reasons for 

the impropriety of Senate tax originations: 

"The Senate did not represent the people, but the States in their 

political character. It was improper therefore that it should tax the 

people. . .. Again, the Senate is not like the H. of Representatives 

chosen frequently and obliged to retum frequently among the people. 

They are chosen by the Sts for 6 years, will probably settle themselves 

19 See Pollock v. Farmers' Loan & Trust Company, 157 U.S. 429 (1895), affd on 

reh'r;, 158 U.S. 60 I (1895). 

10 
178 

at the seat of Govt. will pursue schemes for their aggrandizement -

will be able by weary[ing] out the H. of Reps. and taking advantage of 

their impatience at the close of a long Session, to extort measures for 

that purpose."211 

The ratification debates confirnled this distinction, as summarized by 

Delegate James Wilson of Pennsylvania: "The two branches will serve as checks 

upon the other; they have the same legislative authorities, except in one instance. 

Money bills must originate in the House of Representatives. "21 

A. Despite The Direct Election Of Senators Under The Seventeenth 

Amendment, The Senate Does Not Represent The People In The 

Same Way As Does The House 

Since 1789, this legal distinction between the People and the States has 

endured. One of the more obvious reasons for this distinction is representational 

equality: two Senators from Wyoming (population 570,000) should not enjoy an 

equal vote on new tax schemes as the two Senators from California (population 

38,000,000). Contrast the Senate's staggering representational inequity to the 

inherent equality of the House of Representatives: the single member of the House 

of Representatives from Wyoming represents roughly the same number of 

constituents as any given member of the House of Representatives from California 

211 Madison, supra, at 443 (James Madison arguing for the necessity ofthe clause in 

the Constitutional Convention on August 13, 1787). 

21 James Wilson quoted in "The Pennsylvania Convention Debates" (December 1, 

1787) reprinted in The Documentary History of the Ratification of the Constitution 

Digital Edition, 451, available at 

h11u.:i iro1ul1da.upress. virginia.edu/founders/RNCN [hereinafter "History"]. 

11 
179 

(approximately 550,000 constituents), and both have equal votes and voices as to 

the question of whether to impose a tax on each individual citizen. 

The ratifying public understood the distinction between representation of the 

People in the House, and representation of the States in the Senate, and for this 

reason expressed reservations in 1787 over even granting the Senate the power to 

agree, amend, or refuse revenue raising bills from the House, let alone permitting 

the Senate to originate tax bills such as ACA. 

Moreover, the Founders' provision of the election of Senators by State 

legislatures instead of the electorate ("the People") further demonstrates the 

Senate's representation of State's interests rather than the People's interests. To be 

sure, the adoption of the 17th Amendment in 1913 provided for direct election of 

the Senate by the people instead of state legislatures. But that method of election 

does not change the fundanlental difference between the House and the Senate; it 

did not make the Senate another "People's House." 

The States do not originate and have never originated national taxes. The 

American people retain that privilege exclusively exercised by their representatives 

in the House. Accordingly, the Senate camlOt be the first to propose taxes such as 

those in ACA, a $675 billion revenue raising bill with 20 new taxes.22 

22 See Addendum C. 

12 
180 

B. The Framers Chose The House To Originate Taxes Because The 

House Is Accountable To The People Every Two Years, While 

Senators Are Accountable Only Every Six Years 

The Framers made an informed policy decision that six years is too long for 

federal officers to remain unaccountable for the origination of taxes. Annual 

elections were the standard for bodies of representative assemblies empowered to 

originate money bills in the fowlding era23 

Given the intensity of the debate in detemlining whether two-year terms 

were conducive to representative democracy when one-year temlS were the noml, 

it is clear that officials who sit unchallenged for the greater part of a decade may 

not originate tax bills. The ratifYing public was also clear that they considered it a 

protection of their liberty that they could frequently hold accountable public 

officials for tax originations: 

Who are the members that constitute this [House of Representatives] 

body - the people or their representatives? Can they do any act that 

they themselves are not bOlUld by; and if they lay excessive taxes, the 

people will have it in their power to renIDl other men (vide section 7th 

of I st [Article] for the origination of revenue bill). 2~ 

It was no surprise, therefore, that in 2010 the party that did not cast a single 

vote in the House in favor of ACA in 2009 gained the largest seat change for a 

midterm election since 1938. The entire House was up for re-election. The 

23 See Madison, supra, at 457. 

24 History, supra, at 411 (John Smilie, quoted in The Pennsylvania Convention 

Debates (November 28, 1787). 

13 
181 

Senate, by contrast, enjoyed having two-thirds of its members insulated from 

popular accountability for the measures they had passed the preceding years. 

The separation of power "check" provided by the Origination Clause lets the 

American people know exactly who is responsible for proposing taxes and assures 

that these individuals are those subject to removal from office most frequently. 

Since the 2010 elections, the people's immediate representatives have voted some 

40 times to repeal or defund ACA, but the Senators, who sit for six years 

unchallenged, have never agreed25 The Framers exact fear of taxation without 

adequate representation has materialized due to the complete disregard of the 

mandates of the Origination Clause by the U.S. Senate. 

HI. THE "SENATE HEALTH CARE BILL," \\TIJCH IMPOSED THE 

LARGEST TAX iNCREASE IN" AMERICAN HISTORY, WAS 

INmSPLTAI3LY A "HILL FOR RAISING REYENtJE" tiNDER HIE 

ORIGINATION CLAUSE 

The lower court held that while the individual mandate "raises revenue," it 

was not a "Bill for raising Revenue" for purposes of the Origination Clause and 

that even if it were, the mandate was a proper Senate "amendment" to a Bill that 

originated in the House. Slip op. at 13-23. The court was wrong on both counts. 

Amici will first address in this section the issue of whether ACA was a Bill for 

25 Tom Cohen, House GOP Launches Shutdown Battle by Voting to Defund 

Obamacare, CNN (September 20, 2013) 

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raising revenue and then address the Senate amendment provision of the 

Origination Clause in Part IV. 

A. The "Senate Health Care Bill" Is Designed to Raise Billions in 

Revenue for the General Treasury 

While just the individual mandate of ACA is concededly designed to raise 

over 36 billion dollars in revenue, the companion revenue raising provisions of 

ACA, ignored by the district court in her analysis, further demonstrate that the 

"Senate Health Care Bill" is indeed a massive $675 billion dollar revenue raising 

bill. See Addendum C. 

To ignore the gross difference in scope and scale between the revenue 

raising nature of all the provisions that make up the "Senate Health Care Bill" and 

the nature of the revenue provisions in prior Origination Clause cases (which the 

district court conceded was "sparse") would do great violence to the Origination 

Clause and all future massive revenue raising bills. Given that an Origination 

Clause challenge against a taxing bill of this magnitude has never before been 

mounted, it is imperative that this Court not sanction the lower court's superficial 

analysis of the Origination Clause. 

B. The "Purposive" Test Has No Basis in the History of the Origination 

Clause 

The lower court narrowly focused on the preposition "for" in the Origination 

Clause CBillsfor raising Revenue") and held that for any bill that originated in the 

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Senate to be fOlmd in violation of the Origination Clause, the Senate had to 

specifically and primarily intend, expressly or impliedly, that such revenue, no 

matter how massive in amount, was "for" the primary purpose of raising revenue 

and not "for" some other or secondary purpose, regardless of the impact of such a 

bill on the pocketbook of American citizens. This "purposive" test has no basis in 

the text or constitutional history of the Origination Clause; the lower court's 

reliance on United States v. Munoz-Flores, 495 U.S. 385 (1990) to the contrary 

was seriously misplaced. 

1. Early American Experience with Taxes 

The Colonists thought that anything that taxed them at all for any reason 

was a "money bill" and therefore subject to origination restrictions. 

As previously noted, all but one of the first 13 States included an Origination 

Clause provision in their respective constitutions, and 11 of those did not have a 

"purposive" test. The Massachusetts Constitution of 1780 was quite explicit and 

fonned the basis of the imported final language of the Federal clause: 

[N]o subsidy, charge, tax, impost, or duties, ought to be established, 

fixed, laid, or levied, under any pretext whatsoever, without the 

consent of the people, or their representatives in the legislature. . .. 

[and] all money-bills shall originate in the House of Representatives; 

but the Senate may propose or concur with amendments, as on other 

bills. 26 

26 Mass. Const. ( 1780) (emphasis added). 

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2. Modification of the Proposed Origination Clause 

More compelling evidence that the Founders intended the expansive 

definition of what is a revenue bill or "money bi11" was the modification of the 

proposed Origination Clause itself. 

On August 13, 1787, the Framers were debating a draft version of the 

Origination Clause that read "Bills for raising money for the purpose of revenue or 

for appropriating the same shall originate in the House of Representatives . 

Madison, supra, at 442 (emphasis in the original). Significantly, the final version 

dropped the words "for purpose ofrevenue." In doing so, they appeared to have 

decided that the tenn "money bills" was a synonym for "bills for raising money" 

without the limiting "for the purpose of revenue" clause. In short, the lower court 

created a "purposive" test without any historical basis. 

Early judicial opinions further demonstrate the Founders' broad meaning of 

"bills for raising revenue." For example, in United States v. James, 26 F. Cas. 577, 

578 (C.C.S.D.N.Y. 1875), the court opined: 

Certain legislative measures are unmistakably bills for raising 

revenue. These impose taxes upon the people, either directly or 

indirectly. . . . In respect to such bills it was reasonable that the 

immediate representatives of the taxpayers should alone have the 

power to originate them. 

Moreover, amici submit that the Origination Clause should be read in pari 

materia with Article 1, section 8, clause 7, the power "to lay and collect taxes, 

duties, imposts, and excises." 

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185 

It was this "taxing power" provision upon which the NFlB Court upheld the 

penalty imposed under the individual mandate, and which prompted Chief Justice 

Roberts to issue this important caveat: "[e]ven if the taxing power enables 

Congress to impose a tax on not obtaining health insurance, any tax must still 

comply with other requirements in the Constitution." 132 S. Ct. at 2598. In other 

words, the Constitution gives Congress as a whole the "power to lay and collect 

taxes" (Article I, Section 8, Clause 1), but any bill laying such taxes must originate 

in the House of Representatives under the Origination Clause. 

C. Munoz-Flores Does Not Support The Lower Court's "Purposive" 

Test With Respect To The Billions Raised Under ACA 

According to the lower court's reading of the Supreme Court's 1990 

decision in Munoz-Flores, "so long as the primary purpose of [a revenue raising] 

provision is something other than raising revenue, the provision is not subject to 

the Origination Clause." Slip op. at 13. This conclusion is erroneous. 

In Munoz-Flores, the Court was considering a challenge to the $25 

assessment levied on defendant convicted of federal immigration violation and 

whether that provision imposing the small assessment was a "Bill for raising 

revenue" under the Origination Clause. 495 U.S. at 385. The amounts so collected 

were to be deposited in a special Victims Fm1d that was capped, with residual 

funds, if any, to be deposited in the General Treasury. 

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186 

Over the govenmlent's strong objections that the Court should not even 

entertain the question because to do so would raise a political question and 

improperly interfere with Congress's internal procedures, the Supreme Court was 

emphatic that the Origination Clause challenge is justiciable. Jd. at 401. In 

reaching the merits, the Court concluded that the assessment provision was not a 

Bill for raising revenue for the General Treasury because the ftmds were 

eannarked for a special Victims Fmld, and that only "incidentally" if there were 

any excess funds in the account and those were deposited in the General Treasury, 

that fact will not subject the assessment provision to the Origination Clause. !d. at 

399. 

The lower court seriously misconstrued the "incidental" language used in 

Munoz-Flores. The lower court interpreted "incidental" not as the Supreme Court 

meant, i.e., residual or excess revenue in a relatively small amount that may be 

deposited in the Treasury; rather, the district court interpreted the word 

"incidental" to mean "cOlmected with" or "related to" a legislative progranl that is 

the subject matter ofthe law. 

Here is what the Munoz-Flores Court stated: 

As in Nebeker and Millard, then, the special assessment provision was 

passed as part of a particular program to provide money for that 

program -- the Crime Victims Fund. Although any excess was to go to 

the Treasury, there is no evidence that Congress contemplated the 

possibility of a substantial excess, nor did such an excess in fact 

materialize. Any revenue for the general Treasury that § 3013 creates 

is thus "incidenta[l]" to that provision's primary purpose. 

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187 

495 U.S. at 399 (emphasis added). 

While amici may take issue with the Supreme Court's conclusion that funds 

raised and deposited in an eaffimrked fund are not a bill for raising revenue, what is 

abundantly clear is that Munoz-Flores does not support the lower court's 

"purposive" test. Under the lower court's interpretation of Munoz-Flores, the 

Senate could have originated a bill raising billions of dollars "for the purpose of 

building new prisons" that would be needed because of increased incarceration 

caused by the Sentencing Refoffil Act under consideration in Munoz-Flores and it 

would not be subject to the Origination Clause, even ifthat revenue were deposited 

in the Treasury. This radical and sweeping interpretation, nowhere found in 

Munoz-Flores, would render the Origination Clause a nullity 

Tn stark contrast to the small earmarked assessments in Munoz-Flores, all of 

the hlUldreds of billions to be raised by the penalty provision under the Individual 

Mandate and other tax provisions go directly into the Treasury. None of those 

flUlds are earmarked for a specific progranl in ACA. That distinction alone should 

suffice to demonstrate the lower court's error. 

Moreover, the lower court's conclusion -- that while the revenue "may grow 

the govennnent coffers," the revenue generated is "merely 'incidental' to the 

[individual mandate's] primary purpose" (slip op. at 15) -- also badly mangles the 

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Supreme Court's meaning of the word "incidental," a tenn which had nothing to 

do with the "purpose" of the Victims Fund or the "purpose" of ACA. 

Accordingly, the Senate Health Care Bill, including the individual mandate's 

penalty provision, was a "Bill for raising Revenue" and thus satisfies the first 

prong on the Origination Clause. 

IV, EVE~ IF THE "SE'XATE HEAI~TH CARE DILL" ORIGINATED :IN 

THE HOUSE, c!'HE SENATE AMENI)MEN1' GlJrHNG nm SIXPAGE HOUSE TAX CREDIT BILL AND REPLACING IT WITH THE 

2,047 PAGE ACA IMPOSING $675 BILLION IN TAXES WAS AN 

WI\U'ERMISSmLE. NONGERMANE AMENDMENT 

While the court below held, incorrectly in our view, that ACA "was not a 

'Bill for raising Revenue' ," (slip op. at 17) the court assumed it did for purposes of 

its analysis of the second prong of the Origination Clause: whether ACA 

originated in the House and whether the Senate amendment to the House bill was 

valid. The lower court considered this prong to be the "heart of the origination 

question in this case." ld. 

A. The "Senate Health Care Bill" Originated In The Senate 

Most of the amici were in the House of Representatives during what can 

only be described as the tumultuous and lU1conventional legislative process 

through which ACA originated and was enacted. Tn every plain English language 

sense of the word both today and in 1789, ACA "originated" in the Senate as 

Senator Reid's self-described "Senate Health Care Bill." The only part of ACA 

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189 

that originated in the House was the bill number -- and chamber-specific bill 

designators did not even exist in the early Congresses27 

B. The "Senate Health Care Bill" Was Not Germane To The House Bill 

While the lower court was concemed that it may be a non-justiciable 

question to detennine the merits of whether ACA was a permissible amendment to 

the House bill, the court nevertheless reached the merits and conc1 uded that the 

Senate amendment was germane to the House bill. The court's justiciability 

concems were misplaced; the court was also wrong on the merits of the 

germaneness issue. 

1. The Germaneness Issue is Justiciable 

The lower court suggested that deciding the gemlaneness issue might raise a 

nonjusticiable political question because it would "'express a lack of respect due 

coordinate branches of govenunent" regarding a "textually demonstrable 

constitutional cOimnitment of [an] issue to a coordinate branch of govemment." 

Slip op. at 21 (quoting Baker v. Carr, 369 U.S. 186 (1962)). The court has it 

backwards. By not deciding the issue, the court would show a "lack of respect" to 

the House of Representatives and the Constitution's textual placement of the sole 

power to originate taxes or revenue in that body. 

27 hllp:llmemor:v JOC.Rovlammemlamlawilwhbsb.htm. 

22 
190 

The district court also suggested that the House could have invoked a "blue 

slip" procedure questioning the germaneness of the Senate's sleight-of-hand of 

substituting a 2,047 page half a trillion dollar revenue raising bill for its six-page 

revenue-reducing bill. Slip op. at 19, n.15. Congressional amici might have had a 

chance to lodge that complaint through House procedures if their Democratic 

colleagues who controlled the House then weren't so pressured to rapidly "pass the 

[2,047 page] bill so that you can find out what is in it."2g Moreover, until the NFlB 

Court decided otherwise, neither the bill's proponents nor it opponents believed 

that the mandate penalty was a tax. In any event, the amici have asserted and 

continue to assert their position on the issue by co-sponsoring H. Res. 153 that 

ACA violated the Origination Clause. 

2. The "Senate Heath Care Bill" Was Not a Permissible 

Amendment to n.R. 3590, a Bill Providing Tax Credits To 

Veterans 

a. The House Bill Was Not a Billior Raising Revenue 

SMHOTA was intended to reduce taxes by providing a tax credit to certain 

veterans who purchase houses. Addendum B. To demonstrate that SMHOT A also 

intended to raise taxes, both the lower court and Appellant Sissel mistakenly assert 

that SMOT A "raises income taxes on large corporations." Slip op. at 22; Sissel Br. 

HL:Jl.Q'RJ~Idlr.J!L:Ql![2VJlf!H:t:l1:l:=II!). See also Munoz-Flores (duty of court to 

adjudicate an Origination Clause violation does not depend on whether the House 

acquiesced in it). 

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191 

at 26-27 Cbill did raise corporate taxes"). As Section 6 of SMHOTA, entitled 

"TIME FOR PAYMENT OF CORPORATE ESTIMATE TAXES," makes clear, 

the corporate tax- related provision was merely a withholding modification that 

doesn't raise revenue or tax rates, but merely collects a small amount more than 

may otherwise be due, which amount may be refunded or adjusted once the 

corporation tiles its annual return. 29 

Because neither the tax credit for veterans provision nor the SMHOT A 

corporate tax withholding provision were "revenue raising," any argument that the 

Senate Health Care Bill tor Origination Clause purposes was "germane" to the 

House bill must necessarily fail since the only "gennaneness" between ACA's 

massive taxes and the original H.R. 3590 was the word "tax" that appeared in the 

House Bill. If this is all that is necessary to pass muster lUlder the Origination 

Clause, the Senate could, for example, take a House bill that simply changed the 

due date of tax returns from April 15 to April 1 (and merely collected taxes 

otherwise due two weeks earlier) and gut and replace it with one of the largest tax 

increases in history (which describes ACA). The reasoning by the court below that 

would lead to such results is patently erroneous in light of both constitutional 

history and judicial precedent, as explained below. 

29 See Baret! v. United States, 528 U.S. 431,436 (2000) ("Withholding and 

estimated tax remittances are not taxes in their own right, but methods for 

collecting the income tax. "). 

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192 

b. Even If The Original H.R. 3590 Were a Billfor Raising Revenue, 

The "Senate Health Care Bill" Was an Impermissible Substitute 

Amendment To The House Bill 

Even if H.R. 3590 were originally approved by the House as a bill for 

raising revenue, which it was not, the conversion of that House bill into a "shell 

bi11" by means of a total substitution of its text with the non-germane text of the 

"Senate Health Care Bill," was not a permissible "amendment" as our Founders 

understood that teml. Moreover, this elevation of foml over substance is contrary 

to how even the Senate has heretofore exercised its power to amend "Bills for 

raising Revenue." Any Senate amendment to a House bill that has the effect of 

raising revenue must be "germane to the subject-matter of the [House] bill," not 

just to one small provision in that bill as the lower court wrongly assumed. ,II The 

historical practice of determining "gemlaneness" as well as Supreme Court 

precedent does not support the lower court's novel interpretation. 

The House of Representatives has always recognized the principle that the 

Senate may not design new tax bills. Indeed, when the Framer's wrote the 

Origination Clause, it was clear that the scope of permissible amendments "as on 

other bills" - regardless of whether or not the bill was for raising revenue -- did not 

include amendments that were not gem1ane to the subject matter of the bill. 31 

31J See Flint v. Stone Tracy Co., 220 U.S. 107,143 (1911). 

31 Asher Crosby Hinds, Parlianlentary Precedents of the House of Representatives 

ofthe United States §10n (U.S.GPO, 1899) (quoting Continental Congress nue 

that "No new motion or question or proposition shall be admitted under color of 

25 
193 

This was the established standard when the Fotmders during the Constitutional 

Convention pelmed the words "the Senate may propose or concur with 

Amendments as on other Bills." In short, no non-germane substitute amendments 

at all were permitted in 1787 by the unicameral Continental Congress. 

After the Constitution was ratified, under our newly established bicameral 

legislature, designed as it was to prevent creative usurpations of the House's right 

to "first halve] and declare"32 all new tax laws, the House insisted that any Senate 

amendments altering new tax measures must be gemlane to the subject matter of 

the original house revenue bill, not just that the word "tax" appears somewhere in 

the House bill. Indeed, this is the most direct and logical method to ensure that the 

Senate does not usurp the House's taxing power. The House's definition of this 

standard as applied to all legislative anlendments has historically been quite clear 

and practicable: 

When, therefore, it is objected that a proposed amendment is not in 

order because it is not germane, the meaning of the objection is 

simply that it (the proposed amendment) is a motion or proposition on 

a subject different from that under consideration. This is the test of 

admissibility prescribed by the express lanb'l.lage of the rule. 

(emphasis added)33 

amendment as a substitute for a [pending bill] until [the bill] is postponed or 

disagreed to. "). 

32 See Laws of Maryland, supra, ch. XXV, 37-38 (1765). 

33 Asher Crosby Hinds, Parliamentary Precedents of the House of Representatives 

of the United States, §5825 (1907). 

26 
194 

The Supreme Court in Flint v. Stone Tracy, supra, followed this historical 

practice and rule, finding that the Senate's replacement of just one clause (the 

inheritance tax) among hundreds of other tax provisions in the Payne Aldrich 

Tariff Act with a corporate excise tax of equivalent revenue raising value was 

"germane to the subject-matter of the [House] bill and not beyond the power of the 

Senate to propose." The court below ignored the context of this germaneness nue 

to the point of rendering it wholly meaningless. The Senate's modest and germane 

amendment in Flint is substantially different, both qualitatively and quantitatively, 

from the Senate's wholesale gut and replace of H.R. 3590 with the Senate Health 

Care Bill that became ACA. The two cases stand as polar opposites on any 

conceivable spectnun of germaneness. 

The lower court misinterpreted Flint by erroneously concluding that as long 

as there is a revenue raising provision in the House bill, the Senate has carte 

blanche to originate massive new revenues as "amendments." With an 

lU1derstanding of the history of the gemlaneness nues preceding Flint, the "Senate 

Health Care Bill" amendment to H.R. 3590 was not "gennane to" SMHOTA 

simply because both bills contained the word "tax." 

The House has historically enforced the gennaneness standard with respect 

to all legislative amendments, both revenue and non-revenue bills alike, since its 

earliest days. Moreover, the constitutional issue before tins Court only concems 

Senate modifications that convert a totally unrelated House measure, revenue 

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195 

raising or not, to a new and massive revenue raising bill. The Constitution's 

Origination Clause provides the rule of legislative procedure in those cases. The 

internal administrative rules of either chamber cannot circumvent this requirement 

ofthe supreme law ofthe land. 

The Senate's practice that its amendments to House bills need not be 

germane cannot possibly serve as the basis of the protection of the People's rights. 

It is totally at odds with nomlal Parliamentary procedure, both now and at the time 

that the Framers granted the Senate the power to amend "as on other bill s." 

This practice may be admissible in the context of non-revenue raising bills, 

but the Constitution expressly prohibits this mischief whenever the Senate 

endeavors etTectively to originate taxes. In other words, with regard to the 

Origination Clause's allowance of the Senate to make "amendments" to House 

revenue bills "as on other bills," that practice must be viewed in the light of how 

such amendments were made to those "other Bills" at that time of the 

Constihltion's ratification. Our FOlUlders would not have countenanced the 

manner in which the "Senate Health Care Bill" was enacted. 

To be sure, both Houses are free to adopt rules of procedure that liberalize 

the non-revenue-raising amendment process of non-revenue bills, but that liberal 

practice cannot be used to alter the Origination Clause's limitation on the Senate's 

amendment authority with respect to revenue raising bills. 

28 
196 

In this case, any genmmeness standard must mean something more -- and 

indeed amici submit a lot more -- than simply, as the court below put it, "that both 

the original House bill and the Senate amendment be revenue-raising in nature." 

CONCLUSION 

What is most alarming and dangerous about this case, is that the Senators 

knew exactly what they were doing in circumventing the Origination Clause. As 

explained by Senator Reid's own "Senior Health COllnsel": "[B]asically, we 

needed a non-controversial House revenue measure to proceed to, so that is why 

we used the Service Members Home Ownership Tax Act. It wasn't more 

complicated than that."34 From the perspective of these amici Members of the 

House of Representatives, it could not have been more contrary to the letter and 

spirit of the Origination Clause than that. 

34 E-mail fromKateLeone.SeniorHealthCounsel.OfficeofSen.HarryReid.to 

John CaIman (Apr. 21,2011,3:25 p.m.), in John CaIman, A Legislative History of 

the Affordable Care Act; How Legislative Procedure Shapes Legislative History, 

105:2 LAW LIBRARY JOURNAL, 131, 153 (2013). 

29 
197 

Æ 

Date: November 8, 2013 

Jacki Pick 

2711 Jefferson Davis Hwy 

Suite 200 

Arlington VA 22202 

jackilil)tesla, net 

(703) 418-0287 

OfCollnsel 

Respectfully submitted,' 

lsi Joseph E. Schmitz 

Joseph E Schmitz 

Counsel of Record 

JOSEPHE SCHMITZ, PLLC 

5502 Parkston Road 

Bethesda, MD 20816 

jgjJ!ni.Jz:i!lli-es pIlc, com 

(703) 992-3095 

Paul D, Kamenar 

1629 K Street, N,W 

Suite 300 

Washington, DC 20006 

Pall] ,ka1}lCnanjllgmail ,Qom 

(202) 603-5397 

Counsel for Congressional Amici Curiae 

* Counsel acknowledge the invaluable assistance of Nicholas M, Schmitz, a 

Rhodes Scholar and graduate student at Stanford University, in preparing this 

amici curiae brief 

30