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ENFORCING THE PRESIDENT’S CONSTITUTIONAL 

DUTY TO FAITHFULLY EXECUTE THE LAWS 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

FEBRUARY 26, 2014 

Serial No. 113–63 

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 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

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 

DAVID N. CICILLINE, Rhode Island 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

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

C O N T E N T S 

FEBRUARY 26, 2014 

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 

The Honorable Jim Gerlach, a Representative in Congress from the State 

of Pennsylvania 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 9 

The Honorable H. Tom Rice, a Representative in Congress from the State 

of South Carolina 

Oral Testimony ..................................................................................................... 13 

Prepared Statement ............................................................................................. 15 

The Honorable Diane Black, a Representative in Congress from the State 

of Tennessee 

Oral Testimony ..................................................................................................... 18 

Prepared Statement ............................................................................................. 20 

The Honorable Ron DeSantis, a Representative in Congress from the State 

of Florida 

Oral Testimony ..................................................................................................... 24 

Prepared Statement ............................................................................................. 26 

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

Oral Testimony ..................................................................................................... 30 

Prepared Statement ............................................................................................. 32 

Christopher H. Schroeder, Charles S. Murphy Professor of Law and Professor 

of Public Policy Studies, and Co-Director of the Program in Public Law, 

Duke University 

Oral Testimony ..................................................................................................... 47 

Prepared Statement ............................................................................................. 49 

Elizabeth Price Foley, Professor of Law, Florida International University, 

College of Law 

Oral Testimony ..................................................................................................... 61 

Prepared Statement ............................................................................................. 63 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

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

on the Judiciary ................................................................................................... 5 

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

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

on the Judiciary ................................................................................................... 99 

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Member, Committee on the Judiciary ......................................................................................................................... 104 
Page

IV 

Material submitted by the Honorable Sheila Jackson Lee, a Representative 

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

Judiciary ............................................................................................................... 118 

Material submitted by the Honorable Luis V. Gutierrez, a Representative 

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

Judiciary ............................................................................................................... 125 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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

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

on the Judiciary ................................................................................................... 150 
(1) 

ENFORCING THE PRESIDENT’S CONSTITUTIONAL DUTY TO FAITHFULLY EXECUTE 

THE LAWS 

WEDNESDAY, FEBRUARY 26, 2014 

HOUSE OF REPRESENTATIVES

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Committee met, pursuant to call, at 10:17 a.m., in room 

2141, Rayburn Office Building, the Honorable Bob Goodlatte 

(Chairman of the Committee) presiding. 

Present: Representatives Goodlatte, Coble, Smith of Texas, 

Chabot, Bachus, Issa, Forbes, King, Franks, Gohmert, Jordan, Poe, 

Marino, Gowdy, Labrador, Farenthold, Holding, Collins, DeSantis, 

Smith of Missouri, Conyers, Lofgren, Jackson Lee, Gutierrez, Garcia, and Cicilline. 

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

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

Perry Apelbaum, Staff Director & Chief Counsel; Danielle Brown, 

Parliamentarian; and James Park, Counsel. 

Mr. GOODLATTE. Good morning. 

[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 in order and decorum by censure and exclusion 

from the hearing. The Capitol police will remove the disruptive 

members of the audience immediately. The Capitol police will remove the members who are causing a disturbance. 

Mr. CONYERS. Mr. Chairman, can I urge—thank you for yielding, 

Mr. Chairman. Could I say to our friends here that an unruly presence in the hearing room does not aid your cause in any way, my 

friends. I want to share that. 

Mr. GOODLATTE. We welcome everyone remaining in this morning’s hearing on enforcing the President’s constitutional duty to 

faithfully execute the laws. And I will shortly begin by recognizing 

myself for an opening statement, but I do want to remind the other 

members of the audience that you are welcome to attend this hearing, but you must behave in an orderly fashion, or else we will 
2 

have to remove you from the hearing room as well. And we thank 

you for your cooperation in that regard. 

I will now recognize myself for an opening statement. Since taking office, President Obama has increasingly pushed the boundaries on executive power beyond their constitutional limits. He has 

repeatedly declared that rather than faithfully executing the laws 

passed by the legislative branch, he will refuse to take no for answer, and that where Congress will not act, I will. 

These have not been empty proclamations. From Obamacare, to 

welfare and education reform, to our Nation’s drug enforcement 

and immigration laws, President Obama has been 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 and write or rewrite acts of Congress. It is a bedrock principle of constitutional law that the President must faithfully execute the laws. The President has no authority to bypass 

Congress and unilaterally waive, suspend, or amend the laws based 

on his policy preferences. President Obama’s actions have pushed 

executive power beyond all limits and created what has been characterized as an uber-presidency. 

The question that arises from the President’s end runs around 

the legislative branch is what can Congress do to check these broad 

assertions of power and restore balance to our system of separated 

powers? Traditionally, to check presidential excesses, Congress has 

passed legislation to defund programs the executive branch administers and withhold confirmation for executive branch nominees. 

However, when the President ignores or rewrites the very legislation that places limits on his authority and circumvents the Senate 

confirmation process, the traditional methods of counteracting presidential ambition will not work to preserve the separation of powers. So what can be done? 

The Members of Congress on our first witness panel have all introduced legislation to attempt to check presidential failures to 

faithfully execute the law. These proposals include requiring the 

executive branch to report to Congress any time it adopts a policy 

to refrain from enforcing Federal law, and requiring the Administration to eliminate a position within the Immigration and Customs Enforcement Agency that Congress has already defunded. 

Two of the most widely discussed proposals involve authorizing one 

house of Congress to seek judicial review of the President’s failures 

to faithfully execute the laws. 

[Disturbance in the hearing room.] 

Mr. GOODLATTE. Again, 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. The Capitol 

police will remove the disruptive members of the audience immediately. 

Mr. CONYERS. Mr. Chairman? 

Mr. GOODLATTE. The gentleman from Michigan. 

Mr. CONYERS. I would like to tell the friends here that are about 

to be removed that this is counterproductive to the hearing and 

your views on what is taking place or going to take place in the 

hearing. So I would strenuously urge anybody else in the room that 

wants to display signs to only get evicted, that it is not helping 
3 

your views on it. There are other ways that you can communicate 

with the Members of this Committee, including the Chairman and 

myself, and I urge that you use that instead. 

Mr. GOODLATTE. I thank the gentleman, and the Capitol police 

will remove the members of the audience who are acting in a disruptive fashion immediately. 

Two of the most widely discussed proposals involve authorizing 

one house of Congress to seek judicial review of the President’s failures to faithfully execute the laws. Asking the judiciary, a co-equal 

branch of our government, to step in and check one or the other 

branch’s failures to stay within its constitutional limits would seem 

to be an obvious solution. 

Unfortunately, the courts have been reluctant to exercise their 

constitutionally conferred power to say what the laws are when 

doing so would require them to determine whether either of the political branches has exceeded its authority. Instead, when presented with cases and controversies involving disputes between the 

President and Congress, the Federal courts have used judge-made 

doctrines to avoid judicial review of these inter-branch conflicts. 

But this hostility toward deciding separation of powers disputes 

is not the role the Constitution’s framers envisioned for the judiciary. The framers did not expect the judiciary to sit on the sidelines 

and watch as one branch aggrandized its own powers and exceeded 

the authority granted to it by the Constitution. Rather, the Constitution grants the Federal courts very broad jurisdiction to hear 

all cases arising under this Constitution and the laws of the United 

States. 

However, over time the Federal courts have read their own powers much more narrowly, refusing to exercise a vital check over unconstitutional action by the executive branch. When the courts 

refuse to step in and umpire these disputes, they cede the field to 

this and future presidents. They effectively make the constitutional 

requirement that the President take care that the laws be faithfully executed an unenforceable and meaningless check on executive power. 

It is up to the Congress and the courts to check the President’s 

overreach and restore balance to our system of government. Preventing the President from overstepping the boundaries of his constitutional authority is not about partisan politics. It is about preserving the fundamental premise of our constitutional design, that 

a limited government, divided into 3 separate branches, exercising 

enumerated powers, is necessary to protect individual liberty and 

the rule of law. 

As James Madison warned centuries ago in Federalist 47, ‘‘The 

accumulation of all powers—legislative, executive, and judicial—in 

the same hands may be justly pronounced the very definition of 

tyranny.’’ 

I look forward to hearing from all our witnesses today, but first 

we will hear from the Ranking Member of the Committee, the gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Goodlatte. I welcome the 

first panel of Members as witnesses, and begin this discussion from 

a different perspective about enforcing the President’s constitutional duty to faithfully execute laws, which would be a fruitful un-
4 

dertaking if there was any evidence that the President has, in fact, 

failed to fulfill his duty. 

Yet today’s hearing, which is very similar to the one we held in 

Judiciary on this same topic 3 months ago, is being held in the absence of any evidence of such failure. And although I explained 

much of this before, I will again highlight the reason why there is 

no problem. 

To begin with, let us acknowledge that today’s hearing is really 

about yet another attempt by the majority to prevent the President’s implementation of duly enacted legislative initiatives that 

they oppose, such as the Affordable Care Act and the Dodd-Frank 

Protection Act. Allowing flexibility in the implementation of a new 

program, even where the statute mandates a specific deadline, is 

neither unusual nor a constitutional violation. Rather, it is the reality of administering sometimes complex programs, and is part 

and parcel of the President’s duty to take care that he faithfully 

execute laws. 

This has been especially true with respect to the Affordable Care 

Act. The President’s decision to extend certain compliance dates to 

help phase in the Act is not novel. For example, President George 

W. Bush, for instance, failed to meet some of the deadlines in implementing Medicare Part D, even though it was legislation that he 

strongly supported. Taking steps to deal with the realities of the 

implementation of a complex program hardly constitutes a failure 

to take care that the laws are faithfully executed. It is rather a 

necessary part of meeting the obligation. And even though not a 

single court has ever concluded that the reasonable delay in implementing a complex law constitutes a violation of the take care 

clause in the Constitution, some of the majority insists that there 

is a constitutional crisis. Surely there are more issues more worthy 

of the full Committee’s consideration than this. 

Another fact that the majority appears to ignore is that the exercise of enforcement discretion is a traditional power of the executive. For example, the decision to defer deportation of young adults 

who were brought to the United States as children, who have not 

committed felonies or serious misdemeanors, and who do not pose 

a public safety—the Dreamers—is a classic exercise of such discretion. The Administration cannot legalize these individuals’ status 

without a legal basis. But the Administration’s decision to defer action against particular individuals is neither unusual nor unconstitutional. 

Again, there is a precedent where the exercise for such discretion. In 2005, President George W. Bush’s Administration announced deferred action for approximately 5,500 foreign students 

affected by Hurricane Katrina. And it is no surprise that 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. 

As the Court held in Heckler v. Chaney, ‘‘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 the laws be faithfully executed. 
5 

And for this reason, the Court concluded that an agency’s decision 

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

I will insert the rest of my statement in the record, and yield 

back the balance of my time. 

Mr. GOODLATTE. The Chair thanks the gentleman. Without objection, all other Members’ opening statements will be made a part of 

the record. 

[The prepared statement of Mr. Conyers follows:] 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

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

A discussion about enforcing the President’s constitutional duty to faithfully execute the laws would be a fruitful undertaking if there was any evidence that the 

President has, in fact, failed to fulfill this duty. 

Yet today’s hearing—like the hearing we held on this very same topic just 3 

months ago—is being held in the absence of any evidence of such failure. 

Although I explained much of this before, I will again highlight the reasons why 

there is no problem. 

To begin with, let’s acknowledge what today’s hearing is really about: it 

is yet another attempt by the Majority to prevent the President’s implementation of duly enacted legislative initiatives that they oppose, such as 

the Affordable Care Act and the Dodd-Frank Wall Street Reform and Consumer Protection Act. 

Allowing flexibility in the implementation of a new program, even where the statute mandates a specific deadline, is neither unusual nor a constitutional violation. 

Rather, it is the reality of administering sometimes complex programs and is part 

and parcel of the President’s duty to ‘‘take care’’ that he ‘‘faithfully’’ execute laws. 

This has been especially true with respect to the Affordable Care Act. The President’s decision to extend certain compliance dates to help phase-in the Act is not 

a novel tactic. 

President George W. Bush, for instance, failed to meet some of the deadlines in 

implementing Medicare Part D, even though it was legislation he strongly supported. 

Taking steps to deal with the realities of the implementation of a complex program hardly constitutes a failure to take care that the laws are faithfully executed. 

It is, rather, a necessary part of meeting that obligation. 

And, even though not a single court has ever concluded that reasonable delay in 

implementing a complex law to constitute a violation of the Take Care Clause, the 

Majority insists there is a constitutional crisis. 

Surely, there are issues more worthy of the full Committee’s consideration than 

this. 

Another fact that the Majority appears to ignore is that the exercise of 

enforcement discretion is a traditional power of the executive. 

For example, the decision to defer deportation of young adults who were brought 

to the United States as children, who have not committed felonies or serious misdemeanors, and who do not pose a threat to public safety—the ‘‘DREAMers’’—is a 

classic exercise of such discretion. The Administration cannot legalize these individuals’ status without a legal basis, but the Administration’s decision to defer action 

against particular individuals is neither unusual nor unconstitutional. 

Again there is precedent for the exercise of such discretion. In 2005, President 

George W. Bush’s Administration announced deferred action for approximately 

5,500 foreign students affected by Hurricane Katrina. 

And, it is no surprise that 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. 

As the Court held in Heckler v. Chaney, ‘‘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 the Laws be faithfully executed.’ ’’ 
6 

For this reason, the Court concluded that ‘‘an agency’s decision not to prosecute 

or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.’’ 

I am especially dismayed that 2 of the legislative proposals that will be considered today disrespect the aspirations of DREAMers and reinforce old prejudices and 

inflammatory views about DREAMers, including views expressed by some Majority 

members of the Committee. 

Indeed, the American people expect the Executive Branch, under President 

Obama’s leadership, to work to address a whole host of issues that this House refuses to address, including enhancing protections for the environment, ensuring 

worker safety, and helping financially distressed homeowners, student-loan borrowers, and others who are struggling to achieve the American Dream. 

Rather than wasting precious time on a hearing like this, we should be working 

to address these and many other critical challenges facing our Nation. 

Not only are President Obama’s actions constitutional, they are needed steps to 

helping the American people, and that should be the focus of our discussion today. 

Mr. GOODLATTE. We welcome our first panel today, and if you all 

will rise. As is the custom of this Committee, we will swear you in 

as witnesses. Please raise your right hand. 

[Witnesses sworn.] 

Mr. GOODLATTE. Thank you very much. Let the record reflect 

that all the witnesses responded in the affirmative. 

Our first witness is Jim Gerlach. Representative Gerlach represents the 6th District of Pennsylvania. He was first elected to 

Congress in 2002. On January 13th, Representative Gerlach introduced H.R. 3857, the Enforce the Take Care Clause Act. This legislation puts a procedure in place for the House or the Senate to authorize and bring a lawsuit to seek immediate judicial relief in the 

event that the President fails to take care that the laws be faithfully executed. 

Our second witness is Tom Rice. Representative Rice represents 

South Carolina’s 7th Congressional District. He is currently serving 

his first term in the House. On December 12th of last year, Representative Rice introduced H.Res. 442, the Stop This Overreaching 

Presidency Resolution. The resolution directs the House to institute 

legal action to require the President to faithfully execute the law. 

Our third witness is Diane Black. Representative Black represents the 6th District of Tennessee. She is currently serving her 

second term in the House. In December, Representative Black introduced H.R. 3732, the Immigration Compliance Enforcement Act. 

Her bill requires the Administration to eliminate the public advocate position within the Immigration and Customs Enforcement 

Agency, a position that Congress has already defunded. 

Our final witness on this panel is Ron DeSantis. Representative 

DeSantis is a Member of the Judiciary Committee and represents 

Florida’s 6th Congressional District. He is currently serving his 

first term in the House. On January 29th, Representative DeSantis 

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

bill strengthens existing law by requiring all Federal officials who 

establish or implement a formal or informal policy to refrain from 

enforcing a Federal law, to report to Congress on the reason for the 

non-enforcement. 

I would ask each witness to summarize his or her testimony in 

5 minutes or less. To help you stay within that time, there is a timing light on your table. When the light switches from green to yel-
7 

low, you will have 1 minute to conclude your testimony. When the 

light turns red, it signals the witness’ 5 minutes have expired. 

As is customary, Members will not be asked to stay to answer 

questions. I would like to thank my colleagues for participating in 

this hearing. 

First of all, I want to turn to Representative Gerlach, and I welcome all of the Members of the House who are participating on this 

panel. And we will begin with you, Jim. 

TESTIMONY OF THE HONORABLE JIM GERLACH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA 

Mr. GERLACH. Thank you, Mr. Chairman, and Ranking Member 

Conyers, and all Members of the Committee for the invitation to 

testify today. 

There is no question that on several occasions in recent years we 

have witnessed an unparalleled use of executive power to selectively apply, enforce, and even ignore duly-enacted laws. Testimony 

presented to this Committee last December outlined a number of 

instances where, by regulation or executive order, the President 

has acted contrary to his power and duty under Article 2 to faithfully execute all laws. 

The Affordable Care Act is just one, and perhaps the most glaring, example. The ACA has been revised, altered, and effectively 

rewritten by the President and his Administration 23 times since 

July, with the most recent executive action coming 2 weeks ago 

when the President unilaterally declared a 1-year delay of the employer mandate for companies with 50 to 99 full-time workers. 

My reading of the testimony presented in the hearing in December made it quite clear that the President, through his actions on 

the ACA, as well as other areas of executive action, is fundamentally altering the delicate constitutional balance among the 3 

branches of our Federal system, and the concept of an imperial 

presidency has reentered our national dialogue. It was because of 

this powerful testimony that I began thinking about how we in the 

Congress, as a co-equal branch of government, can work to preserve that critical balance between the legislative and executive 

branches that our framers worked so hard to establish. 

To start, I think we can agree that Congress has fairly limited 

means of redress in the event that the executive branch circumvents the legislative branch through its decisions not to enforce 

certain Federal law. Congress can try to pass new laws to either 

remedy or defund a violating action, but a president who undertook 

the action will not likely support the measure. Where the action 

rises to a high crime or misdemeanor, the House may initiate an 

impeachment proceeding, but such an avenue would surely be extremely divisive within Congress and the Nation generally, and 

would divert the attention of Congress from other important issues 

of the day. 

Finally, judicial relief could be sought, but we well know that 

that process can take years and years while the underlying transgression continues. 

So these thoughts ultimately led me to introduce H.R. 3857, the 

proposed Enforce the Take Care Clause Act. I drafted the bill to 
8 

provide either house of Congress with a new fast-track process to 

have the Federal courts quickly and thoroughly review questions of 

whether a president is properly executing this take care clause, 

and, if not, present a mechanism for immediate judicial relief to 

remedy the situation. 

Specifically, this legislation authorizes the House or Senate, upon 

passage of a resolution in either chamber by a 60 percent super 

majority, to bring an expedited action before the U.S. District 

Court for the District of Columbia seeking review and declaratory 

or injunctive relief in the event a president fails to meet the constitutional requirements to faithfully execute the law. That Court’s 

decision would have to be issued within 90 days and would be immediately and directly appealable to the U.S. Supreme Court for a 

final determination of whether a president has acted in a constitutional manner. 

Some have questioned whether Congress has standing to bring 

a legal action against a president in such a situation. I believe it 

does. Article I vests Congress with all legislative power, including 

in Section 8 the power to make all laws which shall be necessary 

and proper for carrying into execution all other powers vested by 

the Constitution, in the Government, or any officer thereof. One of 

the other powers is a president’s executive power under Article 2, 

the power and duty to faithfully execute the law. 

Further, the Supreme Court has the authority to hear any cases 

arising from this legislation because the judicial power conveyed to 

it in Article 3 extends to all cases arising under this Constitution 

and the laws of the United States. In other words, I believe the 

Court may hear a case procedurally brought to it by a duly-enacted 

law on the issue of whether the Congress believes a president has 

failed to properly execute his constitutionally-vested power. 

Given the number of examples where this President has clearly 

failed to execute all law, I believe it is time for Congress to put in 

place a procedure for a fast-track, independent review of those executive actions. Consequently, I look forward to working with the 

Members of the Committee to implement the common sense procedural reform outlined in this legislation so that we can, one, establish a practical mechanism to resolve serious questions of executive 

overreach; two, retain the deep-rooted constitutional balance between the legislative and executive branches; and, three, help restore the public’s overall confidence in our system of governance. 

Thank you very much, Mr. Chairman, for the opportunity to testify. 

[The prepared statement of Mr. Gerlach follows:] 
9 

U.S. House of Representatives 

Committee on the Judiciary 

Hearing: 

Enforcing the President's Constitutional Duty to Faithfully Execute the Laws 

February 26, 2014 

Written Statement 

Rep. Jim Gerlach 

Pennsylvania - Sixth Congressional District 

Thank you:Mr. Chairman, Ranking Member Conyers, and all members of the 

Committee for the invitation to testify at today's hearing. 

There is no question that on several occasions in recent years, we have witnessed 

an lUlparalleled use of executive power to selectively apply, enforce, and even 

ignore duly-enacted laws. Testimony presented to this Committee last December 

outlined a number of instances where, by regulation or executive order, the 

President has acted contrary to his power and duty under Article II to faithfully 

execute all laws. 

The Affordable Care Act is just one, and perhaps the most glaring, example. 

The ACA has been revised, altered and effectively rewritten by the President and 

his Administration 23 times since July - with the most recent executive action 

coming two weeks ago when the President unilaterally declared a one-year delay 

of the employer mandate for companies with 50-99 full-time workers. 
10 

My reading of the testimony presented at the hearing in December made it quite 

clear that the President, through his actions on the ACA, as well as in other areas 

of executive action, is fundamentally altering the delicate constitutional balance 

among the three branches of our federal system, and the concept of an "Imperial 

Presidency" has reentered our national dialogue. 

It was because of this powerful testimony that r began thinking about how we, in 

Congress, as a co-equal branch of govemment, can work to preserve that critical 

balance between the legislative and executive branches that our Framers worked so 

hard to establish. 

To start, I think we can agree that Congress has fairly limited means of redress in 

the event that the executive branch circumvents the legislative branch through its 

decisions not to enforce certain federal law. Congress can try to pass new laws to 

either remedy or defund a violating action - but a president who undertook the 

action will not likely support the measure. Where the action rises to a "high crime 

or misdemeanor," the House may initiate an impeachment proceeding. But, such 

an avenue would surely be extremely divisive within the Congress and the nation 

generally, and would divert the attention of Congress from other important issues 

of the day. 

Finally, judicial relief could be sought, but we well know that that process can take 

years and years while the underlying transgression continues. 

So these thoughts ultimately led me to introduce H.R. 3857, the proposed Enforce 

the Take Care Clause Act. 

2 
11 

I dratTed this bill to provide either house of Congress with a new "fast - track" 

process to have the federal courts quickly and thoroughly review questions of 

whether a president is properly executing this Take Care Clause power and, ifnot, 

present a mechanism for immediate judicial relief to remedy the situation. 

Specifically, this legislation would authorize the House or Senate, upon passage of 

a resolution in either chamber by a 60% supermajority, to bring an expedited 

action before the U. S. District Court for the District of Columbia seeking review 

and declaratory or injunctive relief in the event that a president fails to meet the 

constitutional requirement that the law be faithfully executed. That Court's 

decision would have to be issued within 90 days and would be immediately and 

directly appealable to the U.S. Supreme Court for a final determination of whether 

a president has acted in a constitutional manner. 

Some have questioned whether Congress has "standing" to bring a legal action 

against a president in such a situation. I believe it does. Article I vests Congress 

with all legislative power including, in Section 8, the power "to make all Laws 

which shall be necessary and proper for carrying into Execution ... all other Powers 

vested by the Constitution in the Government of the United States ... or any officer 

thereof" 

One of the "other powers" is a president's "executive power" llllder Article II - the 

power and duty to faithfully execute the laws. 

Further, the Supreme Court has the authority to hear any cases arising from this 

legislation because the '~iudicial power" conveyed to it in Article III extends to "all 

Cases .. arising under this Constitution [and] the Laws of the United States." In 
12 

other words, I believe the Court may hear a case procedurally brought to it by a 

duly-enacted law on the issue of whether the Congress believes a president has 

failed to properly execute his constitutionally-vested power. 

Given the growing number of examples where this President has clearly failed to 

faithfully execute all laws, 1 believe it is time for Congress to put in place a 

procedure for a fast-track, independent review of those executive actions. 

Consequently, 1 look forward to working with all the members of the Committee to 

implement the commonsense procedural reform outlined in my legislation so that 

we can: (1) establish a practical mechanism to resolve serious questions of 

executive overreach; (2) retain the deep-rooted constitutional balance between the 

legislative and executive branches; and (3) help restore the public's overall 

confidence in our system of govemance. 

Thank you again for the opportlUlity to testify today. 

4 
13 

Mr. GOODLATTE. Thank you, Mr. Gerlach. 

Congressman Rice, welcome. 

TESTIMONY OF THE HONORABLE H. TOM RICE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF SOUTH CAROLINA 

Mr. RICE. Chairman Goodlatte, Ranking Member Conyers. 

Mr. GOODLATTE. You may want to pull that a little closer still. 

Mr. RICE. Chairman Goodlatte, Ranking Member Conyers, and 

Members of the Judiciary Committee, thank you for inviting me to 

discuss the constitutional concerns raised by President Obama’s 

unwillingness to faithfully execute the law as required by Article 

2, Section 3 of the Constitution. We are a Nation of laws, and no 

man, including the President, is above the law. 

When charged with enforcing an unpopular tax in the Whiskey 

Rebellion, President George Washington noted in a letter to Alexander Hamilton, ‘‘It is my duty to see the laws executed. To permit 

them to be trampled upon with impunity would be repugnant to 

that duty.’’ Two hundred and twenty years later, President Obama 

has repeatedly proven himself willing to pick and choose which 

laws or portions thereof he wishes to enforce or rewrite the laws 

at his whim. 

My resolution, House Resolution 442, entitled Stop This Overreaching Presidency, or the STOP Resolution, is intended to enforce 

the separation of powers. If adopted by a majority of the House of 

Representative, the STOP Resolution would require that the House 

as an institution bring a lawsuit against the President to require 

that he carry out his duties pursuant to the take care clause of the 

Constitution. 

I have heard from many of my colleagues or from some of my colleagues that a legal action against the President would be radical. 

But, my friends, I believe when the President repeatedly says that 

if Congress fails to act on his agenda that he will enact his agenda 

through executive order, he is trampling our Constitution and our 

very freedom, and that is far more radical. 

The STOP resolution highlights four instances in which President Obama’s Administration overstepped its bounds in enforcing 

our laws. One is the unilateral decision to delay the employer mandate for business owners. And I want to dwell on that for a minute. 

My history is as a tax lawyer as a CPA, and the Supreme Court 

has ruled that these penalties under these mandates are a tax. The 

President simply has no right to decide when and to whom he is 

going to apply the tax. If a President has that right, then what 

would prevent the next President from saying I do not like any of 

the mandates under Obamacare, and, therefore, I am not going to 

enforce any of them? Or what would stop the next President from 

saying, you know, I think the maximum tax bracket is too high; 

therefore, I am not going to enforce that? 

And all of these consistent changes to the Affordable Care Act. 

You know, businesses have to implement that, and unlike the Federal Government, they have more than a 3-month time horizon. So 

they plan out in the future. And when we have these constant 

changes at the President’s whim, think about what that does to 

businesses’ planning capabilities, to their hiring capabilities, to 
14 

their expansion capabilities. And we should not wonder why our 

economy is struggling. 

Also, my act mentions the 1-year extension of the substandard 

insurance policy under the Affordable Care Act. After the President’s promise, if you like your plan you can keep it, was judged 

the biggest lie of the year, the President opted for a quick political 

fix: the President’s adoption by executive order of the Dream Act, 

which Congress considered and failed to take up, and the waiver 

of the work requirements under the TANF laws. 

Standing. My office has provided to this Committee a legal brief 

on H.Res. 442 in general and the standing issue in particular. In 

addition, since I introduced this resolution, several experts in constitutional law, including some in the panel behind me here, have 

weighed on the viability of H.Res. 442 in the media. 

To summarize, while standing is not guaranteed, we have a good 

argument based upon several factors. The first is this would be 

brought by the House as institution, not by a few random congressmen. Second, as opposed to prior cases, such as Raines, the President’s actions here are in direct violation of existing law. 

STOP has garnered 117 co-sponsors, as well as significant interest from Americans across the country. I understand there are a 

number of alternatives here to enforce to enforce Article 2, Section 

3, but this resolution has one distinct advantage: it only requires 

House action. As my colleagues are well aware, the Senate rarely 

acts on House-passed legislation. 

This is not a partisan issue. We have all heard then Senator 

Obama’s concerns about executive overreach by President Bush, 

and another failed promise that he has as president to work with 

Congress. A hundred and seventeen of my colleagues and I support 

STOP because we believe, as our founders did, that we are a Nation of laws. And no person, including the President, is above the 

law. A government of the people, by the people, and for the people 

is more than just a broken campaign promise. It is the wellspring 

of our freedom, and it must not be ignored. 

My friends, we all took an oath when we took this office. We 

pledged to God to protect and defend our Constitution. President 

Obama took that same oath. We should not allow that oath to be 

one more broken campaign promise. Let us adopt H.R. 442 and require the President to abide by his word. 

Thank you. I yield back. 

[The prepared statement of Mr. Rice follows:] 
15 

Written Statement 

H. Tom Rice, 

lJ nited States Representative, South Carolina Seventh Congressional District 

"The President's Constitutional Duty to Faithfully Execute the Laws" 

Committee on the Judiciary 

lJnited States House of Representatives 

2141 Rayburn House Office Building 

February 26, 2014 

Chairman Goodlatte, Ranking Member Conyers, and Members of the Judiciary Committee, 

Thank you for inviting me to discuss the constitutional concerns raised by President 

Obama's ability to faithfully execute the law. 

In 1792, when charged with enforcing an unpopular tax on whiskey in the face of 

rebellion, President George Washington noted in a letter to Alexander Hamilton, "It is my duty 

to see the Laws executed to permit them to be trampled upon with impunity would be repugnant 

to" that duty. Understanding the overwhelming power of a monarch, the Founding Fathers did 

not seek to grant one man the power to unilaterally create and execute the law; instead, they 

created a carefully-crafted democracy. They protected that new citizenry by dividing it into 

three branches and providing checks and balances to limit the power of each branch. The 

legislative branch creates the law. The executive branch enforces the law. The judicial branch 

interprets the law. 

However, more than 220 years after Washington recognized his duty, we find ourselves 

confronted with a Commander in Chief eager to forget his duty. 

The "take care" clause in Article II, section 3 of the Constitution provides that the 

President shall "take care that the laws be faithfully executed." While the President has the right 

to exercise reasonable discretion, he may not choose which laws shall be enforced. This is 

fundamental to our constitutional framework. Knowing the expectations for the executive 

branch, 1 have watched President Obama's various actions with great dismay. 

My constituents overwhelmingly share this dismay. Throughout my first months in 

office, my constituents continually voiced the same refrain President Obama is overstepping the 

bounds of his otl\ce and Congress is doing nothing to stop his power grabs. Some have even 

suggested impeachment. If the President can continually use his discretion to rewrite laws 

without congressional approval, the House of Representatives and the Senate may as well cease 

to exist. This erosion of our separation of powers diminishes our democracy; leaving us with an 

imperial presidency. 

Troubled by the implications of a careless executi ve branch, I have consulted many 

constitutional scholars for direction on how the House of Representatives could attempt to 
16 

restore our separation of powers without requiring a vote in the Senate. From these 

conversations, I drafted the Stop This Overreaching Presidency (STOP) Resolution, H.Res.442. 

STOP highlights four instances in which President Obama's Administration overstepped 

its bounds in enforcing our laws. The first two are in reference to the Patient Protection and 

Affordable Care Act (ACA): the delay of the employer mandate and the extension of 

"substandard" health care plans. 

Last summer, President Obama's Administration delayed the employer mandate for 

business owners, but deliberately chose not to delay the individual mandate. It is deeply 

disconcerting to believe that the executive branch may choose when or when not to enforce a tax 

against a selected group of Americans. This announcement was made two days before the 

Fourth of the July on a Department of Treasury blog post, in the hopes that many Americans 

would miss it. When the House of Representatives responded to this selective tax delay by 

supporting a delay of the individual mandate, President Obama threatened to veto any delay of 

the individual mandate. To be very clear, President Obama's Administration announced a oneyear delay of the employer mandate without involving Congress. 

After receiving overvlihelmingly negative feedback regarding the ACA's implementation, 

specifically negative feedback concerning the false claim that "if you like your health care plan, 

you can keep it," President Obama unilaterally extended cancelled plans by one year. These 

plans were substandard by the ACA' s definition, but concerned by the political implications of 

the "biggest lie of the year' ," President Obama opted for a quick fix. His Administration 

announced the change in a letter rather than work with Congress to correct this issue. To be very 

clear, President Obama announced an administrative fix in regard to cancelled healthcare plans 

without involving Congress. 

While President Obama's actions regarding the ACA are troublesome, those are only two 

examples of his overreach. What if the President unilaterally decided to open our nation's 

borders to whomever, whenever, without the need for background checks, visas or green cards? 

When President Obama's Administration legislated via memorandum Deferred Action for 

Childhood Arrivals (DACA), he approved special treatment for a specified class of immigrants. 

While President Obama has prosecutorial discretion, he does not have the authority to exempt a 

specified class of up to 1.76 million individuals. DACA also resembled efforts of the DREAM 

Act, legislation that has failed in Congress. To be very clear, President Obama's Administration 

granted temporary status to illegal immigrants who entered the United States without involving 

Congress. 

The last example cited in STOP is in reference to signiticant changes to the Temporary 

Assistance for Needy Families (TANF) program by memorandum. In June 2012, the 

Administration provided a waiver initiative for the welfare work requirement under TANF. The 

TANF work requirement was one of the heralded successes from the 1996 welfare refonn, and 

1 Angie Drobnic IIolan, Lie afthe rear: 'ft))OU like your health care plan, you can keep it', POLITIFl\.CT.COtvl, (Dec. 

j 2, 20 j J, 4:44 PM), http://,,,,,v.politifact.com/truth-o-meteriartlcleI20 j J/decI12/lie-year-if-you-like-vour-healthcare-plan-keep-itl. (The fact-checking organization PolitiF act declared President Obmna's "If you like your health 

care plan, you can keep it" as 201 Y s "Lie of the Year" .) 
17 

unfortunately, the Administration has chosen to roll back this success without congressional 

consultation. To be very clear, President Obama's Administrative provided a waiver initiative 

for the welfare work requirement under TANF without involving Congress. 

In prior cases between the legislative and executive branches, the court has questioned if 

a particular Member of Congress has suffered from vote nullification, also known as the Raines 

standard2 Standing in a suit is ditllcult to establish iflegislative remedies are available. 

However, a legislative remedy is not plausible as President Obama' s Administration wilfully 

ignores the laws that Congress passes. Thereby, Congress's hands are tied. Congress may pass 

laws to address President Obama's behavior, but ifhe declines to enforce said laws - which is 

likely - Congress's voice and vote are silenced. Feeling that Congress has no other legislative 

remedy available, STOP directs the House to authorize legal action as an institutional body 

alleging an institutional injury. 

Since its introduction in December, STOP has gathered 114 cosponsors, as well as 

signiticant interest from Americans across the country. If adopted by a majority of the House, 

this resolution will require the House to take legal action against the President for his failure to 

uphold our Nation's laws. 

I understand that there are many bills designed to protect Section II, article 3, but this 

resolution has a distinct advantage. It only requires House action. Allow me to be very clear. 

As my colleagues are well aware, the Senate rarely acts on House-passed legislation. Since 

STOP is a House-specific resolution, we are not at the mercy of the Senate. We can move 

forward to protect our Constitution as soon as STOP passes. It directs the House to take action, 

rather than idly watch President Obama's Administration continually erode our separation of 

powers. We owe it to our constituents to protect our Constitution. As Representatives, we have 

stated that we would like for 2014 to be a year of action. If we are sincere in this belie( STOP 

takes action. 

Opponents of such a measure are sure to dismiss it as a conservative vendetta, a 

Republican versus Democrat partisan battle, or personal animosity against the President. My 

friends across the political spectrum may also point out the number of executive orders President 

Obama has issued in comparison to his predecessors. It is important to note that the four 

instances outlined in this testimony are not the product of executive orders. Rather, they 

are the product of executive action. Knowing that executive action does not receive the same 

scrutiny as executive orders makes this Administration's oversteps even more unsettling. 

One hundred and fourteen of my colleagues and 1 support STOP because we believe, as 

our Founders did, that one man is not greater than the Constitution, and that a government of the 

people, by the people, and for the people is more than just a broken campaign promise. It is who 

we are as Americans and it must not be ignored. 

2 Railll!s v. B..vrd is the Supreme Comi case th31 established the current standard for eV31uating whether individual 

Members of Congress have standing to sue the executive branch. SC't:' Raines, 521 U.S. 811 (1997). 
18 

Mr. GOODLATTE. Thank you, Mr. Rice. 

Congresswoman Black, welcome. 

TESTIMONY OF THE HONORABLE DIANE BLACK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE 

Ms. BLACK. Thank you, Mr. Chairman, for asking me to testify 

here today. 

By circumventing our Nation’s laws, the Obama Administration 

has ignored constitutional duties and completely discredited itself, 

losing good will along the way with Members of Congress. While 

this Administration’s lawlessness has been most widely noticed 

with President Obama’s implementation of Obamacare, it applies 

to areas far beyond healthcare. 

For instance, in February of 2012, U.S. Immigration and Customs Enforcement appointed a so-called public advocate to act as 

a lobbyist for illegal and criminal aliens within the agency. This 

lobbyist disrupted detention procedures and undermined the hardworking men and women who have dedicated their careers to securing our borders and protecting the American people. In fact, 

Chris Crane, the president of the National ICE Council—the ICE 

employee’s union—called this position, and I quote, ‘‘nothing but 

waste, fraud, and abuse.’’ 

In response to this outrageous appointment, I introduced an 

amendment, H.R. 5855, the Department of Homeland Security Appropriations Act of 2013, to defund this position. This amendment 

passed the House of Representatives by a voice vote, and this same 

language was included in H.R. 933, the Continuing Resolution, that 

was signed into law by President Obama on March the 26th, 2013. 

The clause read, and I quote, ‘‘None of the funds made available 

by this Act may be used to provide funding for the position of the 

public advocate with the U.S. Immigration and Customs Enforcement.’’ 

After we thought that the matter had been taken care of by an 

Act of Congress, approved by the President, last August, thanks to 

information obtained by the watchdog group, Judicial Watch, we 

learned that the most transparent Administration in history had 

quietly changed the title of the position to avoid complying with the 

very law that the President had signed. The Administration 

changed the title of ‘‘public advocate’’ to ‘‘deputy assistant director 

of custody programs and community outreach. It was a change in 

name only. The Administration kept the very same person in the 

position and made no change to the job itself. 

This kind of outrageous shell game is a perfect example of this 

pen and phone President circumventing the will of Congress to 

force his own agenda, and is exactly why the American people cannot trust this Administration. Despite the House and the Senate 

passing language to defund this position and stop this waste of precious taxpayer dollars, this Administration and its ICE officials blatantly skirted the law and allowed the agency’s employees to continue their activities as though nothing had changed. 

ICE records indicated that for exactly 1 week, the public advocate, Andrew Lorenzen-Strait, served as a management and programs analyst, only to be given yet another job title on April 1. 
19 

And since that date, he has served as the deputy assistant director 

for customs programs and community outreach. This program did 

not exist prior to March the 26th of 2013, and since its creation has 

housed a number of programs and staff members who previously 

operated within the Office of the Public Advocate. 

When the reports of this shameless maneuvering began to surface, my office immediately began seeking an explanation from 

ICE, only to be repeatedly stonewalled. And on September 23, of 

2013, after a month of constant requests for information, sometimes including several calls a day, yet given no clear answers for 

this behavior, I sent a formal letter to then-acting director, John 

Sandweg, requesting information about ICE’s action following the 

enactment of H.R. 933. On December the 12th of 2013, following 

months of evasion and failure to respond by ICE, I introduced H.R. 

3732, the Immigration Compliance Enforcement Act, legislation 

that would force the agency to comply with the law by shutting 

down any form of this illegal alien lobbyist. 

Specifically, the ICE Act would defund both the position and prohibit the creation of any new position within ICE that would allow 

the agency to ignore the law and continue its pro-illegal immigration activities. It is of the utmost importance that ICE be required 

to comply with the will of the American people as expressed 

through Congress. 

President Obama’s flouting of the law cannot be allowed to continue, and if this Administration wants to maintain any credibility 

with Congress or the American people, they would stop flagrantly 

ignoring the laws that Congress writes and the President signs. 

Thank you for my time here today, and I yield back the balance 

of my time. 

[The prepared statement of Ms. Black follows:] 
20 

Written Statement 

Representative Diane Black 

Tennessee - Sixth Congressional District 

Before the 

HOUSE COMMITIEE ON THE JUDICIARY 

Hearing on: 

Enforcing the President's Constitutional Duty to Faithfully Execute the Laws 

February 26, 2014 
21 

Thank you Mr. Chairman for asking me to testify here today. 

By circumventing our nation's laws, the Obama Administration has ignored its 

constitutional duties and completely discredited itself, losing good will along the 

way from Members of Congress. 

While this Administration's lawlessness has been most widely noticed with 

President Obama's implementation of Obamacare, it applies to areas far beyond 

health care. 

For instance, in February 2012, U.S. Immigration and Customs Enforcement 

appointed a so-called "Public Advocate" to act as a lobbyist for illegal and criminal 

aliens within the agency. This lobbyist disrupted detention procedures and 

undermined the hardworking men and women who have dedicated their careers 

to securing our borders and protecting the American people. In fact, Chris Crane, 

the President of the National ICE Council -- the ICE employees union -- called this 

position "nothing but waste, fraud, and abuse." 

In response to this outrageous appointment, I introduced an amendment to H.R. 

5855, the Department of Homeland Security Appropriations Act of 2013 to 

defund this position. This amendment passed the House of Representatives by a 

voice vote and this same language was included in, H.R. 933, the Continuing 

Resolution that was signed into law by President Obama on March 26, 2013. The 

clause read: "None afthe funds made available by this Act may be used to provide 

funding for the position of Public Advocate within U.S. Immigration and Customs 

Enforcement. " 

After we thought the matter had been taken care of by an Act of Congress 

approved by the President, last August, thanks to information obtained by the 

watchdog group Judicial Watch, we learned that the "most transparent 

administration in history" had quietly changed the title of the position to avoid 

complying with the very law the President had signed. The administration 

changed the title of "Public Advocate" to "Deputy Assistant Director of Custody 

Programs and Community Outreach." It was a change in name only: The 
22 

administration kept the same person in the position and made no changes to the 

job itself. 

This kind of outrageous shell game is a perfect example of this pen and phone 

president circumventing the will of Congress to force his own agenda and is 

exactly why the American people cannot trust this Administration. 

Despite the House and Senate passing language to defund this position and stop 

this waste of precious taxpayer dollars, this Administration and its ICE officials 

blatantly skirted the law and allowed agency employees to continue their 

activities as though nothing had changed. 

ICE records indicate that for exactly one week, Public Advocate Andrew LorenzenStrait served as a "Management and Programs Analyst," only to be given yet 

another job title on April 1. Since that date, he has served as Deputy Assistant 

Director for Custody Programs and Community Outreach. This program did not 

exist prior to March 26. 2013 and since its creation has housed a number of 

programs and staff members who previously operated within the Office of the 

Public Advocate. 

When reports of this shameless maneuvering began to surface, my office 

immediately began seeking an explanation from ICE, only to be repeatedly 

stonewalled. On September 23,2013, after a month of constant requests for 

information, sometimes including several calls a day yet given no clear answers 

for this behavior, I sent a formal letter to then-Acting Director John Sandweg 

requesting information about ICE's actions following the enactment of H.R. 933. 

On December 12, 2013, following months of evasion and failure to respond by 

ICE, I introduced H.R. 3732, the Immigration Compliance Enforcement Act, 

legislation that would force the agency to comply with the law by shutting down 

any form of this illegal alien lobbyist. 

Specifically, the ICE Act would defund both positions and prohibit the creation of 

any new position within ICE that would allow the agency to ignore the law and 

continue its pro-illegal immigration activities. 
23 

It is of the utmost importance that ICE be required to comply with the will of the 

American people as expressed through Congress. 

President Obama's flouting of the law cannot be allowed to continue, and if this 

Administration wants to maintain any credibility with Congress or the American 

people, they should stop flagrantly ignoring the laws Congress writes and the 

President signs. 

Thank you for your time here today. 
24 

Mr. GOODLATTE. Thank you. 

Congressman DeSantis, welcome to have you on the other side 

of the table there on this Committee, and pleased to hear your testimony now. 

TESTIMONY OF THE HONORABLE RON DeSANTIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA 

Mr. DESANTIS. Thank you, Mr. Chairman. It is often said that 

ours is a government of laws, not of men. If there is any one principle that embodies this maxim, it is the constitutional separation 

of powers. The framers of the Constitution considered the protection of individual liberty to be the primary function of government, 

and they designed the Constitution so that the major delegated 

powers—legislative, executive and judicial—were lodged in separate branches of that government. 

Article 1 of the U.S. Constitution states, ‘‘All legislative powers 

herein granted shall be vested in a Congress of the United States.’’ 

The Constitution delegates no legislative authority to the President. Instead Article 2, Section 3 of the Constitution imposes upon 

the President the duty to take care that the laws be faithfully executed. Under our Constitution, the President cannot amend, suspend, or ignore duly-enacted, constitutionally-valid laws, but must 

instead faithfully execute the laws on the books. Yet in a number 

of areas ranging from welfare work requirements, to illegal immigration, to ObamaCare, the current Chief Executive has failed to 

fulfill this important and long-standing duty to take care that the 

laws be faithfully executed. 

Now, the justifications that have been offered in defense of the 

President’s conduct have ranged from weak to completely baseless. 

First, the fact that some Presidents have issued more executive orders than the current incumbent is irrelevant. The number of executive orders does not tell us anything about their constitutional 

propriety. A President could issue hundreds of executive orders 

about rudimentary executive branch business as authorized by law 

and not threaten the constitutional order at all, while an executive 

that issued merely a handful of executive orders could pose a real 

threat to liberty if those orders exceed the boundaries set by the 

law and the Constitution. 

Second, concern for executive branch lawlessness is not limited 

to, or even primarily concerned with, formal executive orders. The 

suspension of Obamacare’s employer mandate, for example, was 

done not through executive order, but via a blog post. When the 

President purported to ‘‘extend the ObamaCare grandfather provisions’’ last November, he issued a statement from the White House 

press room, not a formal executive order. 

Third, it is not correct to say that the President can simply do 

what he wants unless and until a court stops him. Article 3 courts, 

as has been mentioned, have traditionally been limited to deciding 

concrete cases and controversies. The framers did not expect courts 

to simply referee disputes regarding the separation of powers absent the existence of a concrete legal case. 

As Madison argued in The Federalist, 51, the framers designed 

the system so that ambition would counteract ambition; that is, 

they expected Members of Congress in both the House and the Sen-
25 

ate to place the institutional interests of the legislative branch 

ahead of their personal political interests and to check the executive when he attempted to usurp legislative authority. 

Fourth, the President’s constitutional authority as commanderin-chief of the armed forces is qualitatively different than the President’s obligation to enforce domestic law. Presidents such as Lincoln and Roosevelt have exercised Article 2 authority during wartime in a manner which still provokes considerable controversy. 

The scope of that power is important, but also inapposite to whether the current incumbent is satisfying the take care clause by faithfully enforcing domestic laws regarding issues such as healthcare, 

immigration, and welfare. 

Finally, the Supreme Court decision in Heckler v. Chaney does 

not justify the President’s conduct. That case involved a lawsuit 

filed by death row inmates who claimed that Federal law compelled 

the Food and Drug Administration to review the drugs that State 

officials were planning to use to kill them via lethal injection. The 

Court recognized that, given limited resources, the executive 

branch has the discretion to prioritize enforcement actions. But 

possessing the discretion to prioritize how to enforce a statute does 

not mean the President possesses the ability to decide whether to 

enforce a statute at all. 

As the Supreme Court observed in Kendall v. United States in 

1838, ‘‘to contend that the obligation imposed on the president to 

see the laws faithfully executed implies a power to forbid their execution is a novel construction of the Constitution, and is entirely 

inadmissible.’’ 

I think the President’s conduct needs to be scrutinized by the 

American people. That is why I recently introduced the Faithful 

Execution of the Law Act. Currently, the Attorney General is required to report to Congress any time the Department of Justice 

stops enforcement of a law on the grounds that it is unconstitutional. My bill strengthens this provision by extending the reporting requirement to include any Federal officer who implements a 

formal or informal policy of non-enforcement, regardless of whether 

it is being done on constitutional or policy grounds. My hope is that 

this sunlight will prove to be a disinfectant that will serve to 

hinder the President from usurping the authority of Congress. 

The President is not a king. We are supposed to be a government 

of laws, not of men. The framers designed the Constitution to establish a system based on the rule of law in order to protect the 

liberty of the people. We in Congress have an obligation to use our 

authority to vindicate the intent of our founders and to check this 

executive. 

Thank you. 

[The prepared statement of Mr. DeSantis follows:] 
26 

Enforcing the President's Constitutional Duty to Faithfully Execute the Laws 

Testimony of Representative Ron DeSantis 

2-26-2014 

It is often said that ours is a "government of laws, not of men." If there is anyone 

principle that embodies this maxim, it is the constitutional separation of powers. 

The framers of the Constitution considered the protection of individual liberty to be the 

primary function of government. They designed the Constitution so that the major delegated 

powers -legislative, executive and judicial- were lodged in separate branches of government. 

Article I of the u.s. Constitution states: "All legislative powers herein granted shall be 

vested in a Congress of the United States." The Constitution delegates no legislative authority 

to the President; instead, Article II, Section 3 of the Constitution imposes upon the President 

the duty to "take care that the laws be faithfully executed." Under our Constitution, the 

President cannot amend, suspend or ignore duly-enacted, constitutionally-valid laws but must 

instead faithfully execute the laws on the books. 

Yet, in a number of areas ranging from welfare work requirements to illegal immigration 

to ObamaCare, the current chief executive has failed to fulfill this important and long-standing 

duty to take care that the laws be faithfully executed. 

The justifications that have been offered in defense of the President's conduct by his 

political supporters have ranged from weak to completely baseless. 

First, the fact that some past Presidents have issued more executive orders than the 

current incumbent is irrelevant to the issue at hand. The number of executive orders does not 

tell us anything about their constitutional propriety. A President could issue hundreds of 

executive orders about rudimentary executive branch business as authorized by law and not 

threaten the constitutional order at all, while an executive that issued merely a handful of 

executive orders could pose a real threat to liberty if those orders exceed the boundaries set by 

the law and Constitution. 

Second, concern for executive branch lawlessness is not limited to (or even primarily 

concerned with) formal executive orders. The suspension of ObamaCare's employer mandate, 

for example, was done not through executive order but via a blog post on a Department of 

Treasury website. When the President purported to "extend" the ObamaCare grandfather 

provisions last November, he issued a statement from the White House press room but did not 

promulgate a formal executive order. 

Third, it is not correct to say that the President can simply do what he wants unless and 

until a court stops him. Article III courts are limited to deciding concrete cases and 
27 

controversies. The Framers did not expect courts to referee disputes regarding the separation 

of powers between the Congress and the President absent the existence of a concrete legal 

case. 

As James Madison argued in The Federalist No. 51, the Framers designed the system so that 

ambition would counteract ambition; that is, they expected members of Congress in both the 

House and the Senate to place the institutional interests of the legislative branch ahead of their 

personal political interests and to check the executive when he attempted to usurp legislative 

authority. 

Fourth, the President's constitutional authority as commander-in-chiefofthe armed forces 

is qualitatively different than the President's obligation to enforce domestic law. Presidents 

such as Abraham Lincoln and Franklin Roosevelt have exercised Article II authority during 

wartime in a manner which still provokes considerable controversy. The scope of the 

commander-in-chief power is important but also inapposite to whether the current incumbent 

is satisfying the Take Care Clause by faithfully enforcing domestic laws regarding issues such as 

health care, immigration and welfare. 

Finally, the Supreme Court decision in Heckler v. Chaney, 470 U.S. 821 (1985) does not 

justify the President's conduct. That case involved a lawsuit filed by death row inmates who 

claimed that federal law compelled the Food and Drug Administration to review the drugs that 

state officials were planning to use to kill them via lethal injection. The Court sensibly 

recognized that, given limited resources, the executive branch has the discretion to prioritize 

enforcement actions. Possessing the discretion to prioritize how to enforce a statute does not 

mean the president possesses the abilityto decide whether to enforce a statute at all. 

As the Supreme Court observed in Kendall v. United States, 37 U.S. 524 (1838), "[tlo 

contend that the obligation imposed on the president to see the laws faithfully executed 

implies a power to forbid their execution is a novel construction ofthe Constitution, and is 

entirely inadmissible." 

I think the President's conduct needs to be scrutinized by the American people. That's 

why I recently introduced the Faithful Execution of the Law Act. Currently, the Attorney 

General is required to report to Congress any time the Department of Justice stops 

enforcement of a law on the grounds that it is unconstitutional. My bill strengthens this 

provision by extending this reporting requirement to include any federal officer who 

implements a formal or informal policy of non-enforcement, regardless of whether it is being 

done on constitutional or policy grounds. 

My hope is that this sunlight will prove to be a disinfectant that will serve to hinder the 

President from usurping the authority of Congress. 

The President is not a king. We are supposed to be a government of laws, not of men. 

The framers designed the Constitution to establish a system based on the rule of law in order to 

z 
28 

protect the liberty of the people. We in Congress have an obligation to use our authority to 

vindicate the intent of our founders and to check this ambitious executive. 

3 
29 

Mr. GOODLATTE. Thank you, and I want to thank all the Members of the panel for your testimony, for the legislation that you 

have introduced, and the ideas you have contributed to the Committee on how to address this serious problem. 

As I indicated earlier and as is customary, the Members will not 

be asked to stay to answer questions, and I would like to thank my 

colleagues for participating in this hearing. And you are all excused. 

We now welcome our second panel today. And before you sit 

down, I am going to ask the other two to rise. As is customary, we 

will begin by swearing in the witnesses. If you would raise your 

right hand. 

[Witnesses sworn.] 

Mr. GOODLATTE. Thank you very much. Let the record reflect 

that all of the witnesses responded in the affirmative. 

Our first witness is Jonathan Turley, the Shapiro Professor of 

Public Interest Law at the 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 Wall Street Journal. 

Professor Turley has been recognized as the second most cited 

law professor in the country. 

Our second witness is Christopher Schroeder, the Murphy Professor of Law and Public Studies at the Duke University School of 

Law. In December 2012, he returned to the faculty at Duke after 

serving for nearly 3 years as Assistant Attorney General in the 

Justice Department’s Office of Legal Policy. Professor Schroeder 

has also served as Acting Assistant Attorney General in the Office 

of Legal Counsel at the Justice Department, and as chief counsel 

to the Senate Judiciary Committee. 

He is currently working on a book on presidential powers. 

Our final witness Elizabeth Price Foley, a professor of law at the 

Florida International University College of Law. She is the author 

of 3 books and several review articles, and is a frequent media 

commentator. Professor Foley has authored op-eds that have appeared in publications, including the Wall Street Journal, the New 

York Times, and the Washington Post. 

Prior to joining the faculty at Florida International, she was a 

professor at Michigan State University College of Law, and executive director of the Florida Chapter of the Institute for Justice. 

Welcome to you all. Your entire statements will be made a part 

of the record, and we ask that you summarize your testimony in 

5 minutes or less. To help you stay within that time, 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 the witness’ 5 minutes have expired. 

We will begin with Professor Turley, and welcome. 
30 

TESTIMONY OF JONATHAN TURLEY, SHAPIRO PROFESSOR OF 

PUBLIC INTEREST LAW, GEORGE WASHINGTON UNIVERSITY 

LAW SCHOOL 

Mr. TURLEY. Thank you, Chairman Goodlatte, and thank you, 

Ranking Member Conyers, Members of the Committee, and also my 

esteemed panel that is joining me today. It is an honor to speak 

with you about a subject that is obviously important to everyone 

in this room, Members and citizens alike. 

I testified at the earlier hearing about the separation of powers, 

its history and its function, and also my view that the President 

has, in fact, exceeded his authority in a way that is creating a destabilizing influence in a tripartite or three-branch system. 

Now, I want to emphasize, of course, that this problem did not 

begin with President Obama. I was critical of his predecessor, 

President Bush, as well. But the rate at which executive power is 

being concentrated in our system is accelerating, and, frankly, I am 

very alarmed by the implications of that aggregation of power. 

What also alarms me, however, is that the two other branches appear not just simply passive, but inert, in the face of this concentration of authority. The fact that I happen to think the President is right on many of these policies does not alter the fact that 

I believe the means he is doing it is wrong, and that this can be 

a dangerous change in our system. And our system is changing in 

a very fundamental way, and it is changing without a whimper of 

regret or opposition. 

And so, it is a great honor to speak with you again today about 

the implications, but also about what this branch can do to assert 

its powers and to regain balance in the system. I am a typical 

Madisonian scholar. I tend to view all branches as equal, but some 

more equal than others, and that would be the legislative branch. 

If you take a look at Article 1 and Article 2, even a glance, you will 

see what I mean. The framers, particularly James Madison, spent 

a great deal of time developing this institution. It is the thumping 

heart of our system, and it has lost a great deal of power. And that 

power has largely been transferred to the executive branch. 

Before I talk about those options, I just simply want to note priorities and policies, and, yes, even presidents change. Our system 

is not supposed to change. It is the guarantee that we all have. It 

is an article of faith that we have with one another. It is a thing 

that has weathered wars and depression and social unrest. In our 

system, there is no license to go it alone. There is no freelancing. 

That does not mean that this is not difficult. It does not mean that 

we do not have divisions. 

I want to emphasize that last point. Recently, Congress has 

seemed, frankly, feckless and uncertain as to its authority. It surprises me given the institution created by people like James Madison. I do not, however, believe our dysfunctional government as it 

currently exists is simply the result of dysfunctional politics. It is 

simply untrue that we are living different or unprecedented times. 

The framers lived in these times. 

While people say you are acting like you want to kill one another, when the framers first joined this institution, they were literally trying to kill each other. They were using things like the 

Alien and Sedition Act to try to arrest their opponents. Thomas 
31 

Jefferson referred to his opponents as the reign of the witches. This 

is not a different political time, and it should not be used as an excuse for extra constitutional action. 

Indeed, the branch that I blame the most for the problems we 

are having is the branch that is rarely mentioned, and that is the 

judicial branch. It was once referred to at least dangerous branch, 

but has made itself into the least relevant branch after Raines and 

other cases. Specifically, it has created barriers for Members’ 

standing or legislative standing, which I think is key if we are 

going to rebalance this system. What is strange is that the Supreme Court has dealt with this by saying they are defending separation of powers by refusing to reinforce it. It is like a fire department refusing to put out fires because only you can prevent forest. 

They are tasked with the job of maintaining the separation of powers. 

I have listed the options in my testimony that this body can consider from direct legislative means, to things like appointments, to 

some of the legislation that is pending. I do want to emphasize one 

thing, however, in closing. This common article of faith that we 

have in our system has served us well. The short-term insular victories that are achieved in this term will come with prohibitive 

costs. I happen to agree with many of those policies, but I do not 

agree with the means. 

I believe we are now at a constitutional tipping point in our system. It is a dangerous point for our system to be in, and I believe 

that your response has to begin before this President leaves office. 

No one in our system goes it alone. 

Now, in closing, the fact is we are stuck with each other, whether 

we like it or not, in a system of shared powers, for better or worse. 

We may deadlock. We may even despise each other. The framers 

foresaw such periods. They lived in such a period. But whatever 

problems we have today in politics are of our making. We should 

not destroy the system that has maintained this country so well, 

that should be passed to future generations. 

And I thank you again for allowing me to address you. 

[The prepared statement of Mr. Turley follows:] 
32 

Written Statement 

Jonathan Turley, 

Shapiro Professor of Public Interest Law 

George Washington University 

"Enforcing the President's Constitutional Duty 

to Faithfully Execute the Laws" 

Committee on the Judiciary 

United States House of Representatives 

2141 Rayburn House Office Building 

February 26, 2014 

Chainnan 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 lB. and Maurice C. Shapiro Chair of Public Interest Law. It 

is an honor to appear before you today to discuss the available means of Congress to 

compel the President to faithfully execute the law in accordance with Article II of the 

United States Constitution. U.S. CONSI. art II, § 3, cl. 4. 

I recently testified before this Committee on the history and function of the 

separation of powers in our system. 1 I also discussed how, in my view, President Obama 

has repeatedly violated this doctrine in the circumvention of Congress in areas ranging 

from health care to immigration law to environmental law. I will not repeat that 

discussion here because this hearing is not about the existence of such violations but the 

possible corrective measures that can be taken in light of those violations. 

Given the issues at stake in this debate, it is vital that we speak plainly about the 

current cont1icts between the Executive Branch and the Legislative Branch. We are in 

the midst of a constitutional crisis with sweeping implications for our system of 

government. There has been a massive gravitational shift of authority to the Executive 

The President's Constitutional Duty to Faithfully Execute the Laws Before the H. 

('omm. on the .Judiciary, 113th Congo (2013) (statement of Jonathan Turley, Professor, 

The George Washington University Law School). I also testified in 2012 on the 

controversy surrounding these recess appointments. See !\xec. Overreach: The 

Presidellt's Unprecedented "'Recess" Appointments Before the H. Comm. on the 

Judiciary, I 12th Congo 35-57 (2012) (statement of Jonathan Turley, Professor, The 

George Washington University Law School). See also Jonathan Turley, Recess 

Appointments in the Age of Regulation, 93 BU L REv. 1523 (2013); Jonathan Turley 

COllslillilional Adverse Possessioll: Recess Appoillimenl.s' and Ihe Role (if Hislorical 

Praclice in COllstitutiollal Jnlerpretalioll, 2103 WIS. L REV. 965 (2013); Jonathan Turley, 

The Rise of the Fourth Branch ofGovemmellt, WASIl. POST (May 24,2013), at CI. 
33 

Branch that threatens the stability and functionality of our tripartite system. To be sure, 

this shift did not begin with President Obama. However, it has accelerated at an alanning 

rate under this Administration. These changes are occurring in a political environment 

with seemingly little oxygen for dialogue, let alone compromise. Indeed, the current 

anaerobic conditions are breaking down the muscle of the constitutional system that 

protects us all. Of even greater concern is the fact that the other two branches appear 

passive, ifnot inert, as the Executive Branch has assumed such power. 

As someone who voted for President Obama and agrees with many of his policies, 

it is often hard to separate the ends from the means of presidential action. Indeed, despite 

decades of thinking and writing about the separation of powers, I have had momentary 

lapses where I privately rejoiced in seeing actions on goals that I share, even though they 

were done in the circumvention of Congress. For example, when President Obama 

unilaterally acted on greenhouse gas pollutants, I was initially relieved. I agree entirely 

with the priority that he has given this issue. However, it takes an act of willful blindness 

to ignore that the greenhouse regulations were implemented only after Congress rejected 

such measures and that a new sweeping regulatory scheme is now being promulgated 

solely upon the authority of the President2 We are often so committed to a course of 

action that we conveniently dismiss the means as a minor issue in light of the goals of the 

Administration. Many have embraced the notion that all is fair in love and politics. 

However, as I have said too many times before Congress, in our system it is often more 

important how we do something than what we do. Priorities and policies (and presidents) 

change. What cannot change is the system upon which we all depend for our rights and 

representation. 

Convenience has long been the enemy of principle in politics. It is not enough to 

refer to the value of a program to justify its extraconstitutional means. Such 

constitutional relativism cuts the entire system free of its moorings; leaving the system 

adrift in a sea of politics where the ability to act is treated as synonymous with the 

authority to act. There is no license in our system to act, as President Obama has 

promised, "with or without Congress,,3 in these areas. During periods of political 

division, compromise is clearly often hard to come by. That ret1ects a divided country as 

a whole. Such opposition cannot be the justiiication for circumvention of the legislative 

branch. Otherwise, the separation of powers would only be respected to the extent that it 

serves to ratify the wishes of a president-leaving only the pretense of democratic 

In fairness to the Administration, the Supreme Court in 2007 ruled that the 1970 

Clean Air Act allowed, ifnot required, actions on greenhouse gases if they were found to 

be hannful to the public health. See Massachusells v. !\. P. A., 549 U.S. 497 (2007). The 

Supreme Court is currently considering new and potentially sweeping regulations issued 

in Utility Air RegularUlY Group v. E. P. A. concerning stationary greenhouse gas emitters, 

such as coal-fueled power plants. This makes the greenhouse gas regulations more 

defensible but it remains problematic to have such sweeping rules issued without 

congressional involvement. 1 have written about the shift of governing authority to the 

federal agencies as an emerging "fourth branch" within our system. See supra n. 1. 

] David Horsey, State of the Union: Congress Will Stall Obama's "Year a/Action, ,. 

L. A. TIMES, January 29,2014. 

2 
34 

process. Circumvention is used to avoid any compromise and instead to force victory on 

the unilateral tenns of one branch. 

As T will discuss, the Framers gave the Congress a variety of means to protect its 

institutional authority. However, these means have lost much of their vitality due to the 

changes in the federal government. Moreover, the Framers never expected Congress to 

be solely responsible for the maintenance of the separation of powers. The current crisis 

is the result not simply of executive overreach but also of judicial avoidance in the face of 

that growing encroachment. The courts are now absent-without constitutional leave--

in the midst of one of the most fundamental conflicts in the history of our country. That 

will make corrective measures all the more important (and all the more ditlicult) for 

Congress. 

T. Judicial Avoidance and the Loss of Judicial Review in Separation 

Conflicts 

The very fact that we are having this hearing captures how far we have drifted 

from our original constitutional origins. For much of our history, the Congress has been 

a rock of representative power-balancing the authority of presidents with its own 

authority to force deliberation and compromise in national goals. This is precisely what 

the Framers foresaw in delineating the legislative powers in Article 1. Yet, today, 

Congress often appears feckless and uncertain as to how it can assert its authority when 

openly circumvented or ignored by a president. It is understandable that many of us are 

left wondering how we came to this. 

The answer to that question is not the obvious political divisions in our country. 

While politicians often describe their opponents as being unprecedented in their 

obstructionist or hostile attitudes, politics in the United States has always been something 

of a blood sport-literally. At the start of our Republic, the Republicans and Federalists 

were not "trying to kill one another" in the contemporary figurative sense. They were 

trying to kill each other in the literal sense through measures like the Alien and Sedition 

Acts. Thomas Jefferson once described the Federalist period as "the reign of the witches" 

In other words, this is not the first President to encounter a hostile minority party or even 

an entirely hostile Congress. Our system was designed to force opposing factions to deal 

and compromise with each other. It is a system designed for political division, not 

political consensus. 

Accordingly, T do not subscribe to the common view that our current 

dysfunctional government is solely the result of political division and deadlock, which is 

nothing new in our system. While never mentioned in analysis of our current 

controversies, 1 believe considerable blame rests not with the "political branches" but 

with the Judicial Branch. By refusing to review many separation-based conflicts, the 

Court has left these controversies to simmer and has left the branches to use raw power 

moves to block each other. While once described as "the least dangerous branch,,,4 it has 

re-made itself into the least relevant branch in separation of powers cases. The self4 THE FEDERALIST No. 78 (Alexander Hamilton). 

3 
35 

removal of the courts from these conflicts has served to prolong and deepen conflicts 

between the political branches. 

The irony is that in the last few decades the Supreme Court has removed itself 

from separation of powers cases ... in the name of separation of powers. Indeed, in its 

decision in Raines v. Byrd, the Court insisted that "we must put aside the natural urge to 

proceed directly to the merits of this important dispute and to 'settle' it for the sake of 

convenience and efficiency. Instead, we must carefully inquire as to whether appellees 

have met their burden of establishing that their claimed injury is personal, particularized, 

concrete, and otherwise judicially cognizable."s 

Some of the most important questions to the Framers, like the declaration ofwar,6 

have been avoided by the courts under claims that the judiciary is somehow strengthening 

the separation of powers by refusing to reinforce the lines of separation. It is akin to fire 

departments allowing houses to bum under the claim that citizens are best source for fire 

protection. Thus, the reasoning goes, if"only you can prcvcnt wildfires," thcn you 

can pul thcm out The policing of the lines of separation is the single most important duty 

of the courts since the separation of powers was designed as a protection of individual 

liberty. It is the concentration of authority in anyone branch that threatens individual 

rights. While checks and balances exist, the protection of the structural integrity of the 

system (as with federalism guarantees) rests with the courts as neutral arbiters. In these 

cases, the courts are not asked to resolve political questions but are instead asked to 

resolve conflicts regarding the process through which such questions are resolved. 

The removal of the federal courts from the equation in these conflicts has placed 

even greater stress on the system of checks and balances. However, the measures 

available to Congress are no substitute for judicial review, particularly given the changes 

in our federal system. As I have discussed in earlier writings, a fourth branch has 

emerged in our tripartite system that is highly insulated and independent from Congress. 

Today, the vast majority of "laws" governing the United States are not passed by 

Congress but are issued as regulations. Recently, this Supreme Court added to this 

insulation and authority with a ruling that agencies can detennine 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 this shift toward 

agency power, Congress is practically limited in the measures that it can take to limit 

521 U.S. 811, 820 (1997). 

F or the record, I represented members of both parties challenging the assertion of 

unilateral war powers, but we were unable to even secure a hearing from the federal court 

which avoided the question on standing grounds. See Jonathan Turley, Members of 

Congress Challenge Uhyan War in Federal Court, JONATTTAN T1JRT.EY: RES IpSA 

LOQUITUR ("TilE TIlING ITSELf SPEAKS") (June 15,2011), 

http/ljonathanturley.org/20 11106/ 15/members-of-congress-challenge-libyan-war -infederal-court! (discussing representation of members challenging the intervention by 

President Obama in the Libyan War). 

7 133 S. Ct. 1863, 1879 (2013). 

4 
36 

Executive action. In refusing to adjudicate separation of powers questions, courts often 

list these checks like some self-authenticating mantra: the power of the purse, oversight 

jurisdiction, and, of course, impeachment. On closer examination, however, the new 

realities of federal governance have diminished the viability of these measures for 

checking Executive Power in the United States. 

n. The Erosion of Checks on Executive Power Within the Modern 

Madisonian System 

The classic check on executive over-reaching is the power of the purse. While the 

President may control the machinery of the state, it is Congress that supplies the gas 

needed to run those machines. However, the idea of the purse strings as a meaningful 

check on executive power is often presented in highly generalized and unrealistic terms. 

Congress is unlikely to cause a cascading fail ure by cutting off all of the funding for an 

agency or even a subagency office. More importantly, the Executive Branch routinely 

moves billions of dollars around in discretionary or undesignated funding. Cutting off 

the funding of a given part of the government does not have immediate impacts and may 

in fact not prevent funding as intended. 

The Obama Administration has shown how the power of the purse has diminished 

under modern fiscal systems. Consider the health care controversy. As the Washing/on 

Pust reported, "[t]he 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]"8 Even leading Democratic 

members denounced this act as "a violation of both the letter and spirit of this landmark 

law.,,9 However, that open disregard of the power of the purse resulted in nothing of 

consequence for the Administration. Congress was simply circumvented and the 

President effectively self-appropriated federal funds for his own priorities. Constitutional 

objections amounted to little more for the President than what Macbeth described as 

voices "full of sound and fury,! Signifying nothing ,,10 

This was of course not the tlrst such shifting of funds to support unilateral action. 

Indeed, when we challenged the Libyan War on behalf of Democratic and Republican 

members, we showed how the Administration funded an entire military campaign by 

shifting billions in money and equipment without the need to ask Congress for a dollar. 

President Obama not only said that he alone would detlne what is a war in circumvention 

of the declaration power but al so uni laterall y funded the war as just another di scretionary 

Sarah Kliff, The Tncredihle Shrinking Prevellliull Fund, WASH. POST, April 9, 

2013. 

Statement of Sen. Tom Harkin, The Impurrance ujrhe Preventiun Fund tu Save 

Uves and Money, May 7, 2013 ("Mr. President, T was deeply disturbed, several weeks 

ago, to learn of the White House's plan to strip $332 million in critical funding from the 

Prevention and Public Health Fund and to redirect that money to educating the public 

about the new health insurance marketplaces and other aspects of implementing the 

Affordable Care Act.") 

10 William Shakespeare, MACBETH, V.v.27-2S. 

5 
37 

expense. Federal appropriations have become so fluid and discretionary spending so lax 

that presidents are now more insulated than ever before from the threat of de-funding. 

This is not to say that the power of the purse is no potential hold on Administrations. 

Congress needs to be more specific on the use of funds and reduce the degree to which 

funds are given for discretionary uses, particularly during periods of circumvention and 

tension. 

The other oft-cited power checking the Executive Branch is direct legislative 

action and oversight authority. Once again, however, recent years have shown how 

presidents can insulate themselves from legislative inquiry into questions of misconduct 

or misappropriation. Recently, the Administration refused to turn over material to 

oversight committees and the House moved to hold Attorney General Eric Holder in 

contempt. ll The Administration responded by blocking any prosecution of Attorney 

General Holder by the United States Attorney for the District of Columbia. Thus, while 

the Executi ve Branch has long insisted that only it can prosecute such offenses, it has 

used this authority to block its own investigation or prosecution. The Administration 

then tried to block any lawsuit by Congress to enforce a subpoena against Holder. 12 

1 recently published two studies on the diminishment of congressional power in 

the context of the circumvention of congressional power over federal appointments. 13 I 

have argued that appointments fights have become more intense because of the 

diminishing checks on executive power and the rise of a fourth branch within the federal 

agencies. Faced with the refusal of agencies to answer questions or supply documents, 

appointments have become a key avenue to resolve some of these disputes for Congress. 

It is a poor vehicle, to be sure, but it is one of the remaining measures for Congress to 

have an immediate impact on executive action. T previously testified that 1 believe that 

President Obama clearly violated the Constitution in his recess appointment of Richard 

11 Sari Horwitz, Justice Department Confirms It Wiff Not Prosecute Holder, WASH. 

POST (June 29, 2012), http://www.washingtonpost.com/world/national-security/justicedepartment-confirms-it-will-not-prosecuteholder/20 1 2/06/29/gJQAbHgACW _story.html; Eyder Peralta, Justice Will Not Prosecute 

Holderfor Conlempl (?f Congress, NPR (June 29, 2012), 

http://ww-w.npr. org/b I ogs/thetwo-way120 12/06129/156002660/justi ce-wi 11-not -prosecuteholder-for-contempt-of-congress. 

12 See Comm. on Oversight and Gov't Reform 1'. Holder, 2013 WL 5428834 (D.D.C. 

Sept. 30, 2013). In Holder, the House Committee on Oversight and Government Reform 

sought to enforce a subpoena seeking information related to the "Fast and Furious" 

operation by the Bureau of Alcohol, Tobacco and Firearms. Notably, the House of 

Representatives then passed authorization of the Chairman of the Oversight and 

Government Operations Committee to initiate the civil lawsuit and the court refused to 

deny the lawsuit on standing grounds. The Court ruled that "[t]o give the [executive] the 

final word would elevate and fortify the executive branch at the expense of the other 

institutions that are supposed to be its equal, and do more damage to the balance 

envisioned by the Framers than ajudicial ruling on the narrow privilege question posed 

by the complaint." Id at *8. 

13 See n. 1. 

6 
38 

Cordray to serve as the first Director of the Consumer Financial Protection Bureau and 

three individuals to the National Labor Relations Board. 14 While Congress holds the 

power of the purse, the exercise of that power to cut off funding to agencies that 

administer critical social programs or peJiorm critical social functions is considered by 

many to be the ultimate "nuclear option." The shared appointment power, by contrast, 

offers Congress a less drastic method by which it may express its opposition to 

presidential power or policy. The Cordray controversy is now before the Supreme Court, 

in NLRB v. Noel Canning. However, regardless of how the Court rules, I believe that 

Congress needs to go further in reinforcing the appointments power to rebalance the 

tripartite system. 

The final authority often cited by courts is the impeachment power. As one of 

those who testified during the Clinton impeachment and the lead counsel in the most 

recent judicial impeachment case, I do not take this power lightly, and I strongly disagree 

with those who treat it as a readily available check on presidential abuse. Let me be clear. 

Tn my view, some actions of recent presidents-from the approval of torture to the 

unilateral commitment of our country to war-should raise questions of impeachment. 

However, the courts have enabled presidents in these abuses by treating the issues as 

political questions or rejecting challenges to such authority. As a result, presidents have a 

plausible claim to be acting under their interpretation of past cases. I do not believe that 

President Obama has committed impeachable offenses in these areas even though T 

believe that he has knowingly and repeatedly violated the Constitution. The recess 

appointment controversy is a good example. As I stated in earlier testimony, I was 

astonished by the low quality of the opinion issued by the Office of Legal Counsel 

supporting those recess appointments. However, the prior avoidance by courts created a 

basis (albeit a rather thin one) to claim a good faith interpretation of the broader scope of 

the Presi dent's recess appoi ntm ent powers. 

The solution to this crisis will not be found in the impeachment clause. What is 

striking, however, is how the courts have elevated impeachment as a recourse by denying 

the more appropriate and less traumatic avenue of judicial review. No system can long 

survive with impeachment as the critical means for deterring executive abuse. It is akin 

to running a nuclear power plant with no safeguards and merely an "on or oil" switch. 

That will not bring stability to a system that is already dangerously out of kilter. 

HI. Restoring Balance in a Tripartite System: Options for Congress in 

Combating Executive Usurpation of Legislative Authority 

The current threat to legislative authority in our system is comprehensivespanning from the misappropriation of funds to the circumvention of appointments to 

negation oflegislative provisions. Any solution, therefore, must also be comprehensive. 

14 See Exec. Overreach: The Pres idem 's Unprecedemed "Recess" Appoilllme/l/s 

Reji)re H. Comm. on/he Judiciary, 112th Congo (2012) (statement of Jonathan Turley, 

Professor); see also Jonathan Turley, Recess Appointments alld The Abuse o/Power, 

USA TODAY, Feb. 15,2012. 

7 
39 

For that reason, the current proposals should not be considered in isolation but as part of 

a broader package oflegislative countenneasures. The proposed legislation on legislative 

or member standing is particularly of interest to me, as T stressed in my earlier testimony. 

A. Member Standing 

I have repeatedly testified before Congress on the single most valuable change 

that would counter the usurpation of legislative authority: legislative or member standing. 

T have long advocated the right of members to seek judicial review in alleged violations 

of the separation of powers. While I understand the reluctance of courts to consider 

political questions, a separation-based challenge is not a political but a structural question 

that is committed to the courts. Indeed, "standing" does not appear anywhere in the 

Constitution as a tenn or even by reference. It is a creation of the courts and has radically 

changed over the years to create a growing barrier for access to the courts. We now face 

a situation where major alleged violations of the Constitution are raised but there is no 

one who clearly has the standing to force judicial review. 

The classic elements for standing are an injury-in-fact, a showing of an injury that 

is fairly traceable to the defendant's conduct, and redressability by the court. It is the first 

of these elements that has been the source of the most ditliculty for members in 

establishing legislative standing. 

There are certainly good faith disagreements on the scope of standing that should 

be allowed given the limitation under Article III of review of only "cases" and 

"controversies,,,15 but the wholesale removal of the courts from many separation 

controversies, in my view, was never envisioned by the Framers. The Court has allowed 

a narrow window for standing for members in cases involving personal injury or 

institutional injury.lG Personal injury claims are always preferred in litigation on behalf 

of members as they are the most likely to prevail (as with citizens with personal injuries). 

However, they also tend to be the most limited in scope and relief. For example, in 

Powell v. McCormack,17 Congressman Adam Clayton Powell sued (with a small number 

of constituents) over his exclusion from the House chamber after a scandal involving 

expense accounts. The Supreme Court found that Powell had standing based on his 

personal injurylS and that his exclusion from the House presented ajusticiable case or 

controversy, and it has subsequently made clear that Powell is a case involving a private 

legislator injury. 

It is the second category of institutional injury that holds the most promise for 

Congress in separation cases, albeit limited given the overtly hostile attitude of the 

15 u.s. CONS] art. II, § 2 ("The judicial Power shall extend to all Cases in Law and 

Equity, arising under this Constitution, and Treaties made. under their 

Authority. .;- to Controversies to which the United States shall be a Party; - to 

Controversies between two or more States .... "). 

16 Chenoweth v. Clinton, 997 F. Supp. 36, 38-39 (D.D.C. 1998). 

17 395 U.S. 486 (1969). 

18 This was later amplified as a distinction in Raines. See Raines, 521 U.S. at 821. 

8 
40 

current federal bench. 19 Raines, however, adopted a severely limited view of such injury. 

In that case, four senators and two House members challenged the Line Item Veto Act. 

The low number of members clearly undermined the challenge. The Court viewed these 

members as having lost in Congress and as advancing a type of "sore losers" c1aim20 

Much of the challenge was based on "a type of institutional injury (the diminution of 

legislative power) which necessarily damages all Members of Congress and both Houses 

of Congress equallydl The Court, however, saw any diminishment as being 

experienced by all members and thus too defused for standing22 It also did not help that 

the members in Raines were injured by their own colleagues as opposed to the unilateral 

action of the President 23 The greatest diUlculty facing a legislative solution to this 

morass is that the Court has actively sought to bar lawsuits by basing many of its 

decisions on its interpretation of Article III as opposed to prudential considerations24 

Congress can alter standing under prudential principles but cannot alter the constitutional 

meaning of Article llI25 Absent a constitutional amendment, a change in the 

interpretation of Article TTT can only come from the Court itsele6 

19 This hostility was evident in the rejection of our challenge to the Libyan War in 

Kuc:inich v. Ohama, 821 F. Supp. 2d 110 (2011). 

20 I have long disagreed with this view because it is possible for a majority of 

Congress to relent to unconstitutional acts. Indeed, a Congress can be controlled by a 

President's party or simply cowed by his popularity. The fact that a few members 

challenge the unconstitutional act does not diminish the argument on the merits. Indeed, 

such control of a president reflects the greatest danger in a democratic system-a popular 

but potentially authoritarian leader. 

21 Raines, 521 U.S. at 821. 22 I disagree with that view and fail to see why a generally experienced 

diminishment of power reduces its viability for standing. This view reminds one of the 

standing for public nuisance where an individual with clear injury is denied if everyone 

else experienced the same substantial injury. The problem is that in public nuisance, 

government agencies can sue and there remains private nuisance actions. In separation 

cases, the denial of these members leaves a president often unchallenged in the 

usurpation oflegislative authority. 

23 A similar problem was faced in Chenuweth v. Clintun, 181 F.3d 112 (D.C. Cir. 

1999), cert. del7ied 529 U.S. 1012 (2000), where a handful of members sought to enjoin 

the President's implementation of the American Heritage Rivers Initiative. The five 

members sought to legislatively stop the initiative, but the bill was efJectively killed by 

their colleagues. 

24 See generally Dep't of Commerce v. House of Representatives, 525 US. 316, 

328-29 (1999). 

25 See Railles, 521 US. at 820 n.3. 26 The Court drew this distinction in the recent decision in Windsor, observing that 

"Rules of prudential standing, by contrast, are more flexible 'rulers] ... of federal 

appellate practice,' Depusit Guaranty Nat. Rank v. Roper, 445 U S. 326, 333 (1980), 

designed to protect the courts from 'decid[ing] abstract questions of wide public 

significance even [when] other governmental institutions may be more competent to 

9 
41 

One obvious area of action is to empower institutional claims to be taken on 

behalf of Congress or a house or even a committee. Such a committee was found to have 

standing in Commillee on /he Judiciary v. Miers on the basis of institutional injury. 

Notably, however, this was to enforce a congressional subpoena where the committee 

was "expressly authorized by the House of Representatives as an institution.,,27 Standing 

arguments can be based on actions taken by a president to nullify the vote of members. 

However, the Supreme Court in Raines warned that it would not allow claims that it 

considers to be based on "abstract and widely dispersed" injuries 28 

The strongest claim is found in acts that strip legislators of their power to legislate. 

It has to be an action that denies any legislative response because it nullifies the power of 

Congress. In Kucinich, we argued (among other points) that the circumvention of 

Congress in declaring or approving of war represented such nullification, but the district 

court refused to even give the members a hearing on the question29 This was the same 

result seen in Campbel1 v. Clinloll,30 where the D.C. Circuit denied standing to thirty-one 

members of the House who opposed the committal of troops by President Clinton in 

Kosovo as a violation of both the War Powers Act and the War Powers Clause of the 

Constitution. 

Legislative standing is most compelling, as noted in Committee on the Judicial}' v. 

Miers, when it "ha[s] been expressly authorized by the House of Representatives as an 

ills/illilion" to bring the suit by House resolution 3l Such a case was presented in 

Colemall v. Miller where twenty-one Kansas senators sued under a mandamus action to 

prevent authentication of Kansas's ratification of a proposed federal Child Labor 

Amendment32 Notably, in a forty-member house, this was a majority of members and 

the Kansas senate had rejected the amendment by a 20-20 vote. The Court recognized 

that the claim represented a direct nullification claim and that the members had presented 

address the questions and even though judicial intervention may be unnecessary to 

protect individual rights.'" United States v. Windsor, 133 S. Ct. 2675, 2686 (2013) 

(quoting Deposir Guaranty Nat. Bank v. Roper, 445 U.S. 326, 333 (1980) and Warth v. 

Seldi/l, 422 U.S. 490, 500 (1975)). 

27 Such subpoena cases tend to have the strongest track record but could be viewed 

as a narrow ground for more general separation-based challenges. See Unired Stares v. 

Am. Tel. & Tel. Co, 419 F. Supp. 454, 458 (DDC. 1976); Ashlalld Oil, Inc. v. FTC, 548 

F.2d 977 (D.C. Cir. 1976); In re Beef Indus. Antitrust Litig, 457 F. Supp. 210, 212 (N.D. 

Tex. 1978). 

28 Raines, 521 U.S. at 826. 

29 Kucinich, 821 F. Supp. at 120 (ruling that Raines nullification "necessitates the 

absence of a legislative remedy."). 

30 203 F.3d 19 (D.C. Cir.), cert. denied 531 U.S. 815 (2000). 

31 In Miers, the U.S. District Court for the District of Columbia held that the 

Committee had standing to sue to enforce a congressional subpoena in part because it 

"had been expressly authorized by the House of Representatives as an illSlilll/ion" to 

bring the suit. 

32 Coleman v. Miller, 307 U.S. 433 (1939). 

10 
42 

a "plain, direct and adequate interest in maintaining the effectiveness of their votes. ,,33 

Legislative standing is a modest extension of standing to a relatively small group, 

but it would have a pronounced impact on separations controversies. Standing 

limitations are often defended by the courts under the theory that those with the most at 

stake in disputes are the most likely to present the strongest arguments. When it comes to 

separations conflicts, members have such resources and such an interest to present strong 

cases. To use colloquial parlance, they have "skin in the game" when it comes to the 

separation of powers. 

The problem with securing legislative standing is the specific grounds laid bout 

by the Supreme Court for its past decisions. Any change in the Article III limitations 

would have to come from that same Court. The only alternative would be a constitutional 

amendment. The situation is, in my view, so serious that 1 believe we may have to 

consider such a move, even though I have long opposed constitutional amendments as a 

general principle. 1 have been reluctant to suggest such a resolution because 1 believe the 

Court is dead wrong on standing and that this is a barrier created by the courts rather than 

the Constitution. These decisions have overwhelmingly tended to favor the expansion of 

executive power. 1 still hope to see a correction of these decisions and much prefer any 

alternative to a constitutional amendment, which I readily admit is a difficult proposition. 

The efJort reflected in H. Res. 442 to create institutional standing is commendable. 

Despite the hostile reception given to past legislative standing efforts, it is important for 

Congress to continue to press the courts for access on separation of powers questions. 

Indeed, the bill is written not as a challenge to the merits of the regulatory changes but to 

the means used for those changes. Absent individual injury of a member, such 

institutional challenges are the only option short of a constitutional amendment. While T 

would alter the language of the bill, the premise remains sound as an effort to secure 

judicial review ofa violation of the separation ofpowers34 

The current controversies of the faithful execution of the laws contain some 

elements that should be emphasized in any legislative record. First, to the extent that any 

lawsuit would be authorized by statute on behalf of the institution, it would be 

substantially advanced compared to prior groups of aggrieved members. Second, such 

authorization would reflect the view that Congress is the most aggrieved party and the 

33 Coleman, 307 U.S. at 438; see also Kerr v. Hickenlooper, 880 F. Supp. 2d 1112, 

1131 CD Colo. 2012). 

34 The proposed H.R. 3857 takes the same general approach in trying to lay the 

groundwork for institutional standing and adds the rulemaking element and specified vote 

requirements. Once again, T commend the premise though T would alter some of the 

language. The law sweeps more broadly and would more aggressively deal with the rise 

of the fourth branch within the tripartite system. However, it would also present a more 

difficult foundation in the likely challenge before the courts since it extends to a 

challenge of any regulation or act of "agency administrative guidance." That could be 

challenged as intruding too far into executi ve actions by members and could reinforce the 

concern of some judges of a "slippery slope" in allowing member standing. At this time, 

a more limited bill might be advisable given the hostility of the Court to separation-based 

challenges by members. 

11 
43 

best party to advance these arguments. Indeed, there may not be any readily apparent 

private party available in some of these actions. Third, since the President is nullifying 

provisions in the law and shifting funds without authorization, he has already ignored the 

authority of Congress to dictate such matters. It hardly seems logical to require Congress 

to pass additional laws to address the negation of prior laws that were ignored. While it 

could be argued that Congress could still retaliate by denying appropriations in their 

entirety, the White House has already moved funds dictated to other purposes. That 

presents one of the stronger nullification records of prior conflicts between the branches. 

B. Legislative Action 

The loss oflegislati ve authority is not onl y attributable to the expansion of 

presidential powers but also to the rise of a fourth branch of federal agencies. Congress 

is becoming marginalized in the actual laws governing citizens. Most of the legal 

obligations faced by citizens now come from hundreds of thou sands of regulations that 

are promulgated without direct congressional action and outside the system created by the 

Framers to force compromise and consensus in a representative system. There have 

clearly been great benefits associated with this administrative system, and modern 

government would be impossible without some agency deference. However, a 

fundamental change is occurring in our system with relatively little deliberation by 

Congress, which has lost the most from the emergence of a fourth branch. Tn my view, 

greater control has to be asserted by Congress in promulgation oflarge new regulatory 

schemes. This would require more restrictive language on agency authority and, by 

extension, would require more work (and probably staff) in the legislative branch in 

playing a more active role in addressing more changes as legislative rather than solely 

agency matters. 

Congress can take meaningful action to require congressional review and 

approval of major regulations like the greenhouse regulations and immigration 

regulations. For that reason, the change proposed in H.R. 3973 would have the benefit of 

forcing greater disclosure and discussion on new policies of nonenforcement. The law 

already establishes this duty for the Justice Department and would extend it more broadly. 

It would also extend the grounds for such reports beyond constitutional objections by the 

Executive Branch to the enforcement of a law. Obviously, enforcement of this law as 

currently written, let alone in its amended form, remains a problem. The Justice 

Department has already shown a willingness to block contempt cases against 

Administration officials. Putting that aside, as someone who has long warned about the 

marginalization of Congress in the new model of federal governance, any required 

disclosures of such policies can only assist the Legislative Branch. Moreover, it is hard 

to see the argument against such disclosures. Too often, Congress has been informed of 

major changes by leaks to the media in what has become an increasingly pedestrian role 

for the Legi slati ve Branch. 

I also commend the focus of some in Congress on the recent controversies over 

the withdrawal from the defense of federal laws like the Defense of Marriage Act 

("DOMA") Once again, 1 share President Obama's opposition to DOMA and 1 have 

strongly supported same-sex marriage. However, I was appalled by the confusion and 

uncertainty over standing created by the withdrawal of the defense of the laws. It did not 

12 
44 

serve the legal process to obscure the important legal issues in the recent Supreme Court 

cases with questions of standing and representation. I understand Attorney General Eric 

Holder's position that he felt that he could not ethically support the law, even though the 

Administration once did defend the laws. However, the solution, in my view, is not to 

abandon the law, let alone the Legislative Branch. DOMA was still a law passed by 

Congress and signed by President William Clinton. As with the contempt controversy, 

one cannot assert absolute right to represent the Legislative Branch and then refuse to 

defend laws. Holder should have appointed outside counsel to defend the law in the 

name of the government if he found the task to be ethically barred. While T support the 

Administration's general position, there were good faith arguments on both sides of the 

DOMA question-as was the case with the California referendum. We should all want a 

full and fair consideration of those arguments without artificial limitations presented by 

litigation abandonment. 

In Uniled Siaies 1'. Willdmr, the Court was divided on the standing of members to 

defend DOMA with both Chief Justice Roberts and Associate Justice Scalia rejecting 

standing arguments by the House of Representatives' Bipartisan Legal Advisory Group 

(BLAG). The majority, however, found sufficient Article III standing despite the fact 

that the Obama Administration abandoned defense of the federal law. It found prudential 

reasons for accepting the case to guarantee adversarial process and other interests." 

Notably, however, standing was rejected in Hollingsworth 1'. Perry after the California 

Attorney General withdrew from the defense of the state referendum. Just yesterday, 

Attorney General Eric Holder encouraged state Attorney Generals to follow this same 

course in abandoning defense of their own state laws 3G Given the division over standing 

in Windmr and the denial of standing in Hollingsworth, General Holder's advice is 

troubling and inimical to the legal process. There is a difference between refusing to 

personally defend a law and leaving a law undefended. The interests of justice demand 

that courts are given an adversarial presentation of arguments-a requirement that is 

openly obstructed when the government withdraws from representation and fails to 

appoint individuals to defend a law. 

C. Appointments 

I will not repeat my earlier testimony or writings on reasserting congressional 

power over appointments. However, regardless of what the Supreme Court rules this 

3; Justice Kennedy specifically noted "the prudential problems inherent in the 

Executive's unusual position" and the risk that the abandonment of the defense of the law 

would deny the Court of a "real, earnest and vital controversy." Windsor, 133 S. Ct. at 

2687. The Court held that "prudential considerations demand that the Court insist upon 

'that concrete adverseness which sharpens the presentation of issues upon which the court 

so largely depends for illumination of difficult constitutional questions.'" Id (quoting 

Raker v. Carr, 369 U.S. 186,204 (1962)). 

36 Evan Perez, ~hc Holder Becomes An Activist Attorney General, CNN, Feb. 25, 

2014. 

13 
45 

term, Congress should try to reach consensus on how to respond to future circumventions 

on recess appointments. First, one of the most dangerous fonns of recess appointments 

remains judicial recess appointments. Such appointments have existed from the earliest 

period of the Republic. Indeed, the first five Presidents made thirty-one such 

appointments, including five to the Supreme Court. However, such appointments were 

necessitated by the long congressional recesses and a limited number of federal judges 

(and a six-person Supreme Court). That is not the case today. Modemjudicial 

appointments are often a fonn of retaliation against Congress for refusing to confinn 

nominees and undermines the guarantee under Article TTl for independent judges. A 

recess-appointed judge is dependent on the Administration to put forward his or her name 

for a later confirmation. That individual is also aware that any decisions rendered during 

the recess appointment could be used against him or her. Congress should maintain an 

unwavering rule that anyone given a recess appointment to ajudicial position would be 

categorically rejected for subsequent confinnation. 

Second, the Congress should maintain the same rule for an intrasession recess 

appointments or appointments during three-day recesses. If the Court does not rule such 

appointments to be unconstitutional, Congress should resolve that any such nominees 

would be barred from later confinnation to that post. Third, Congress should, at a 

minimum, bar any later confirmation to any nominee who received a recess appointment 

after being previously submitted to Congress in the earlier session. Indeed, I believe that 

no recess appointment should be allowed where a vacancy existed in the prior term (as 

opposed to arising during a recess). Since I view appointments as one of the few 

remaining avenues for Congress to influence federal agencies, I would encourage a 

bright-line rule on such recess appointments. Congress could temper this rule with a 

formal waiver of the bar on confirmation if, before the end of the prior session, it passed 

a resolution acknowledging that certain nominees (who did not receive a final vote) could 

be legitimately given a recess appointment. This resolution would merely acknowledge 

that the nominees were not rejected (or filibustered) on the merits and Congress would 

not treat the appointment as a circumvention of its authority. Obviously, nothing would 

stop a president from making abuse appointments, subject to court challenges. However, 

if Congress were to maintain this principled line regardless of the party of the president, it 

would greatly reduce the abuse of this Clause. If nominees were truly left unconfirmed 

due to administrative or logistical problems, the two branches could agree that those 

nominees would not be barred due to any recess appointment. 

Congress should consider a comprehensive resolution on future recess 

appointments. While this will not be binding on future Congresses, it could constitute a 

bipartisan policy that would guide future Congresses. It would also put future presidents 

on notice that the abuse of recess appointment powers will have consequences. If the 

Court does find that President Obama violated the Constitution in the Cordray 

controversy, such a new piece oflegislation would be well-timed to try to reach a 

consensus on how to handle disputes in the future. Since any decision is likely to be 

limited to the specific issues in the case before the Court, such legislation would ideally 

help avoid future conflicts and reinforce the institutional obligations of both parties. 

14 
46 

TV. Conclusion 

The subject of this hearing is fraught with passions and politics. T do not wish to 

add to the hyperbolic rhetoric surrounding the current controversies. To be clear, I do not 

view President Obama as a dictator, but I do view him as a danger in his aggregation of 

executive power. It is not his motives but his means that T question. It is the danger 

described by Louis Brandeis in his dissent in Olmsteadv. United States,,7 where he 

warned that the "greatest dangers to liberty lurk in insidious encroachment by men of zeal, 

well meaning but without understanding." 

It is my sincere hope that both parties will join in fulfilling their sworn duty to this 

branch and to the Constitution in putting aside petty or political differences to restore 

balance to our system. While this may be an exercise of hope over experience of a 

constitutional scholar, I know from personal experience that there are many 

constitutionalists on both sides of the aisle. Through the years, I have had many 

exchanges with Republican and Democratic members who reflected their deep 

understanding and love for our system. That common article of faith between members 

once transcended politics and I believe it can do so again. While strong institutional 

voices like that of Senator Harry Byrd and others are now silent, I am hoping that new 

voices will be heard in these chambers. What is required is for members to recognize 

that there is a horizon for this country that extends beyond the term of the current 

president. 

The only thing that joins us is our common faith in a system that has weathered 

wars, depression, and civil unrest. The current passivity of Congress represents a crisis 

of faith for members willing to see a president assume legislative powers in exchange for 

insular policy gains. The short-term, insular victories achieved by this President will 

come at a prohibitive cost if the current imbalance is not corrected. Constitutional 

authority is easy to lose in the transient shifts of politics. It is far more difficult to regain. 

If a passion for the Constitution does not motivate members, perhaps a sense of selfpreservation will be enough to unify members. President Obama will not be our last 

president. However, these acquired powers will be passed to his successors. When that 

occurs, members may loathe the day that they remained silent as the power of 

government shifted so radically to the Chief Executive. The powerful personality that 

engendered this loyalty will be gone, but the powers will remain. 

We are now at the constitutional tipping point for our system. If balance is to be 

reestablished, it must begin before this President leaves office and that will likely require 

every possible means to reassert legislative authority. No one in our system can "go it 

alone" - not Congress, not the courts, and not the President. We are stuck with each 

other in a system of shared powers-for better or worse. We may deadlock or even 

despise each other. The Framers clearly foresaw such periods. They lived in such a 

period. Whatever problems we are facing today in politics, they are problems of our own 

making. They should not be used to take from future generations a system that has 

safeguarded our freedoms for over 250 years. 

37 277 U.S. 438 (1928). 

15 
47 

Mr. GOODLATTE. Thank you, Mr. Turley. 

Mr. Schroeder, welcome. 

TESTIMONY OF CHRISTOPHER H. SCHROEDER, CHARLES S. 

MURPHY PROFESSOR OF LAW AND PROFESSOR OF PUBLIC 

POLICY STUDIES, AND CO-DIRECTOR OF THE PROGRAM IN 

PUBLIC LAW, DUKE UNIVERSITY 

Mr. SCHROEDER. Thank you, Chairman Goodlatte, Ranking Member Conyers, Members of the Judiciary Committee. Thank you for 

the opportunity to testify before you today. You have my written 

testimony, and I will simply summarize its main points, illustrate 

them with one example, and then go to the general question of the 

meaning of the take care clause. 

When the executive branch exercises delegations of discretionary 

authority granted by law, it is executing the law. In deciding how 

to exercise discretion, the executive branch may appropriately consider equitable considerations and policy priorities that are not specifically prescribed by the Congress. Almost all statutes grant discretionary authority, including the discretion to set priorities and 

to determine not to engage in all possible enforcement actions. 

These choices are not intentioned with executing the laws. They 

are part and parcel of executing the law. 

Some of these actions may resemble legislative action in the 

words of the Chadha v INS Court, but the Court went on to say, 

‘‘The test of their legality is not that kind of eye test. Rather the 

test is to check them against the terms of the legislation that authorized them.’’ Now, both DHS’ deferred action decision and the 

actions the Treasury Department have taken, among others, but 

just to pick those two examples, have been explicitly justified as exercises of statutorily-delegated authority and prosecutorial discretionary authority. 

The Administration is not claiming any authority to suspend, 

nullify, or dispense with any law. Even assuming that it is possible 

to see a resemblance between these administrative actions and 

such labels, the proper approach to analyzing the actions must 

begin by taking the Administration at its word because if they are 

defensible as exercises of discretion granted by law, their resemblance to these other things is immaterial. 

So while Secretary Napolitano’s memorandum memorializing her 

deferred action for childhood arrivals is brief, it relies explicitly on 

scarce resources, equitable considerations, and policy choices, 

which are classic factors influencing decisions not to enforce. And 

it also seems to be quite in line with the Supreme Court’s recent 

recognition in the Arizona case of the important role that immediate human concerns play in immigration decisions. Not only does 

the deferred action seem to be well grounded in the general understanding of prosecutorial discretion and statutory discretion, both 

the Department of Homeland Security and the INS, prior to DHS’ 

creation, have apparently long treated deferred action as a species 

of prosecutorial discretion with instances of exercising this authority extending back to at least 1975. It is fair to assume that Congress has been aware of this longstanding practice and has at least 

implicitly acquiesced in it. 
48 

Now, I have more about Secretary Napolitano’s decision and the 

Treasury decisions in my written remarks. But even there it is not 

my intention to delve deeply into these or other any questions of 

discretionary authority with regard to one or more of these actions. 

What I want to do is to articulate the appropriate way to understand what it means to execute the law faithfully in the context of 

statutes that grant discretionary authority, and to emphasize that 

analysis of the propriety of any exercise of discretionary authority 

must begin with the statutes and the authorities they grant. If the 

action can be squared with them, taking into account the full array 

of discretion that has been granted by law, then the action is faithfully executing the law. 

Suppose, however, that the executive branch oversteps, that it 

takes an action that is outside the boundaries that the statute has 

laid out. Is the President then guilty of violating his constitutional 

duty? In my view, not by virtue of that fact alone. The President’s 

duty is to take care that the law is faithfully executed, not that it 

is flawlessly executed. No President could ever meet the standard 

of flawless execution. 

Because mere legal error is consistent with faithful execution of 

the laws, I do not believe the avoidance of legal error goes to the 

heart of the matter of the President’s obligation. So what does? The 

heart of the matter, it seems to me, lies in exercising good faith 

and conscientious effort to take actions within the discretionary authority granted by law. So long as the President is taking are to 

ensure that this is being done, he is discharging his constitutional 

obligation. 

I thank the Committee for its time, and I look forward to answering your questions. 

[The prepared statement of Mr. Schroeder follows:] 
49 

Written Statement 

Christopher H. Schroeder 

Charles S. Murphy Professor of Law and Professor of Public Policy 

Studies, Co-Director of the Program in Public Law, Duke University 

"Enforcing the President's Constitutional Duty to Faithfully Execute 

the Laws" 

Committee on the Judiciary 

United States House of Representatives 

2141 Rayburn House Office Building 

February 26, 2014 

Chairman Goodlatte, Ranking Member Conyers, and members of the 

Judiciary Committee, I am Chris Schroeder, a professor of law at Duke Law 

School. From 2010-2012 I served as Assistant Attorney General for the 

Office of Legal Policy at the United States Department of Justice. Earlier, I 

served as deputy assistant attorney general and acting Assistant Attorney 

General for the office of Legal Counsel, from 1994-97, and prior to that I 

was chief counsel to the Senate Judiciary Committee, 1992-93. Much of my 

current research and writing concentrates on questions of presidential 

authority. 

I thank you for the invitation to testify here today on the subject of the 

President's constitutional duty to faithfully execute the laws. 

Article II, Section 3 of the United States Constitution imposes on the 

President the solemn duty to "take care that the Laws be faithfully 

executed." In recent months, the contours of this duty have received a 

considerable amount of attention, stimulated by several different actions 

taken by the administration, including, but not limited to, the Department of 

Homeland Security's Deferred Action for Childhood Arrivals and decisions by 

the Department of the Treasury to delay full implementation of certain tax 

provisions enacted by the Patient Protection and Affordable Care Act. 

1 
50 

In our constitutional democracy, taking care that the laws are executed 

faithfully has a number of facets. The Constitution imposes restrictions on 

Congress' legislative authority, so that the faithful execution of the laws may 

present occasions where the President declines to enforce a congressionally 

enacted law in order to enforce another law, the Constitution. Even when 

legislation raises no question of constitutionality, the laws that Congress 

enacts are incredibly diverse and executing them can raise a number of 

issues of interpretation, application or enforcement that need to be resolved 

before a law can be executed. Further, the "mass of legislation" that has 

been lawfully enacted creates problems of coordination that must be 

addressed in one manner or another.l In these remarks, I shall concentrate 

on the nature of federal laws and some of the most significant issues that 

arise in enforcing them, in situations where the Executive Branch does not 

face a question of the constitutionality of the laws themselves. My objective 

is to develop a picture of law execution that will illuminate important aspects 

of the President's Take Care responsibility. 

The laws that Congress enacts are extremely diverse in their characteristics. 

For instance, they range from short and simple, such as the provision of the 

Omnibus Appropriations Act of 1997, PL 104-208, which amended 18 U.S.c. 

§922(q)(2) to make it unlawful for someone to possess a firearm that has 

moved in interstate commerce when that person has reason to believe he or 

she is within a school zone, to the long and complex, such as the Patient 

Protection and Affordable Care Act, PL 111-148. One characteristic that 

unites almost all of them, however, is that each delegates one or more 

discretionary decisions about how to execute them to the executive branch. 

By "discretion," I simply mean "an authority granted by law to act" one way 

or another according to one's "own considered judgment and conscience.,,2 

When the Executive Branch exercises discretionary authority that has itself 

been granted by law, it is executing that law, notwithstanding any 

disagreements one might have with the particular manner in which that 

discretion has been exercised. There is an important proviso here: the 

executive's discretionary choice cannot lead to just any judgment. It must 

be a choice that falls within the authorities granted by the statute. 

1 "[Tlhe President is a constitutional officer charged with taking care that a 'mass of legislation' be executed. 

Flexibility as to mode of execution ... is a matter of practical necessity." Youngstown Steel & Tube Co. v. Sawyer, 

343 U.S. 579, 702 (Vinson, c.J., dissenting). 

1 Pound, "Discretion, Dispensation and Migration: The Problem of the Individual Case," 35 N.Y.U.l. Rev. 925, 926 

(1960). 

z 
51 

Accordingly, executive branch choices are "subject to check by the terms of 

the legislation that authorized [them]," typically either through "judicial 

review ... or the power of Congress to modify or revoke the authority 

entirely." It is its adherence to law in this sense that renders legitimate 

"executive action under legislatively delegated authority that might 

[otherwise] resemble 'legislative' action in some respects.,,3 

Discretionary choices are unavoidable features in executing almost all laws. 

Consider a law that the Environmental Protection Agency had to execute 

after Congress enacted the Clean Air Act Amendments of 1977, which 

among other things required the Administrator of EPA to set rules for the 

regulation of air emissions for certain stationary sources. The Act itself did 

not define "source," and there were reasonable arguments that source could 

mean either a single smokestack or a single factory or facility, which might 

include a number of different smokestacks, or it could mean both. Which 

definition was selected had consequences for both the costs that owners of 

stationary sources would incur and the amount by which air pollution would 

be reduced. 

EPA had initially chosen a definition that was going to be more costly for 

producers. Then, when "a new administration took office and initiated a 

Government-wide reexamination of regulatory burdens and complexities," 

EPA switched course and promulgated a definition that lowered compliance 

costS.4 In other words, the new administration emphasized different policy 

objectives than the prior administration, and the definition of source finally 

chosen advanced those objectives, not the objectives of the prior 

administration nor, necessarily, the objectives of the Congress. The selection 

was consequential enough that the EPA's choice was litigated up to the 

Supreme Court. In Chevron v. N.R.D.C., the Court upheld EPA's new 

definition, finding that "the Administrator's interpretation represents a 

reasonable accommodation of manifestly competing interests and is entitled 

to deference ... Congress intended to accommodate both interests, but did 

not do so itself on the level of specificity presented by these cases. ,,5 

For purposes of understanding what it means to faithfully execute the laws, 

Chevron makes two crucial pOints. First, it was impossible to execute this 

'INS. v. Chadha, 462 US 919, 954 n. 16 (1983). 

4 Chevron v. N.R.D.C., 467 U.s. 837, 858 (1984). 

5 Id. at 865. 

3 
52 

aspect of the Clean Air Act without choosing a definition of source. While the 

choice itself was discretionary, the exercising of discretion was not - it was 

an unavoidable component to executing the law. Without actually exercising 

the authority to make discretionary choices such as these, the overall 

process of statutory interpretation, application and enforcement that make 

up the execution of law cannot be done. 

Second, the Court's discussion of the conflicting interests and policies that 

needed to be reconciled in selecting a definition of source leaves little doubt 

that the Court would have sustained the prior Administration's definition as 

well. The Court here was simply acknowledging the inevitably of policy 

objectives influencing choice, and further indicating that so long as that 

choice was "check[ed] by the terms of the legislation" - in its words, so long 

as the choice was a "permissible construction" of the statute - it was the 

Executive's responsibility, as part of its responsibility to execute the law, to 

make the choice. By necessity, the exercise of choice "requires the 

formulation of policy and the making of rules to fill any gap left, implicitly 

and explicitly, by Congress.,,6 Congress did not have to leave the question 

for the agency. By being specific Congress could certainly have made the 

choice between competing definitions here. In this sense, when the EPA 

makes the choice, the EPA's determination of the meaning of source does 

indeed "resemble 'legislative' action." Nonetheless, as the Chadha Court 

said, "executive action under delegated authority" remains law execution, 

and does not become lawmaking or any other type of legislative action. 

The gap filling activities illustrated by Chevron that are required to execute 

today's mass of legislation have grown enormously as the corpus of federal 

legislation and its delegations of authority have grown. Even so, the 

understanding that this kind of gap filling activity is essential to executing 

the law was well established from the earliest days of the Republic (as well 

as before). To cite just one example, Thomas Jefferson was steadfast in 

insisting that the Constitution ought to grant no lawmaking powers and no 

powers in the nature of royal prerogatives to its Executive. For instance, in 

his 1783 Draft of a Fundamental Constitution for Virginia, he insisted that 

the Executive ought to be given "these powers only, which are necessary to 

execute the laws (and administer the government).,,7 Yet later on he wrote 

to Governor Cabell that "if means specified by an act are impracticable, the 

G Morton v. Ruiz, 415 U.S. 199, 231 (1974). 

7 Thomas Jefferson, Notes on the State of Virginia 365 (1787). 

4 
53 

constitutional [executive] power remains, and supplies them ... This aptitude 

of means [that the act does not supply] to the end of a law is essentially 

necessary for those who are executive; otherwise the objection that our 

government is an impracticable one would really be verified."B Supplying 

effective means to accomplish a statutory end is clearly within the 

competence of the Congress in the first instance, and hence when the 

agency provides those means this action will once again typically "resemble 

'legislative' action," but Jefferson clearly saw that this resemblance did not 

take the action out of the Executive's realm. 

Sometimes Congress' delegation of authority concerns the question of how 

to construe or interpret a particular word, as was the case in Chevron. The 

delegation of discretionary authority can also relate to resolving more 

recurrent or more generic issues that arise in executing the laws. Two of 

these more generic delegations relevant to the present discussion are the 

discretion to set priorities and allocate resources to different work streams 

and the discretion not to initiate enforcement actions, the latter of which can 

in a number of ways be thought of as a subcategory of the first. 

When it is appropriating funds for executive branch activities, Congress can 

fund functions within an agency at levels it considers appropriate, given its 

own priorities and policy choices. It can, for instance, fund the line item for 

OSHA inspectors at levels sufficient to support the inspection of any single 

workplace on average once every 131 years9 or, to pick a different example, 

by passing the Senate version of an immigration reform bill and 

appropriating sufficient funds, it can fund 20,000 new border agents. These 

funding levels produce very different levels of law execution in their 

respective fields, but in each case the agency will still be faithfully executing 

the applicable law when it in good faith and conscientiously expends the 

funds made available for that purpose. 

If it receives fewer funds than sufficient to discharge all its responsibilities, 

however, the agency must set priorities. At current funding levels, OSHA 

cannot send an inspector to visit every work site within its jurisdiction, so it 

must set priorities. Priority setting becomes even more important when an 

agency has been charged with executing multiple pieces of legislation. 

3 Edward Corwin, the President: Offices and Powers 1787-1984 (Randall W. Bland et al. eds, 5th ed. 1984) {quoting 

letter from Thomas Jefferson to Governor Cabell (Aug. 7, 1807). 

9 AFL-CIO, 2013 Death on the Job Report, Exec. Summ. p. 2. Available at 

http://www.aflci 0.0 rgi conten tid ownl oadl79331/ 1935061/2A +Executive+Su m ma rv20 13 fi na i. pdf 

5 
54 

Congress is under no obligation to ensure that appropriated funds and the 

statutory delegations it has made are kept aligned such that all agency 

functions are funded at levels sufficient to enable each agency to execute 

fully all the laws over which it has been given responsibility. Such "full 

execution" funding as a practical matter is not possible. This kind of funding 

shortfall does not imply that the executive is failing in its charge to execute 

the laws faithfully. All legislation is passed by Congress with at least the 

implicit delegation of discretion to the agency to set priorities. lO The priority 

setting decisions necessitated by budget constraints necessarily affect how 

the laws are being executed at any point in time, not whether they are being 

executed. 

The need to set priorities was an important animating force behind the 

Supreme Court's ruling that agencies possess almost unreviewable discretion 

to decide not to enforce a statute. In Heckler v. Chaney, then-Associate 

Justice Rehnquist reasoned that 

"An agency decision not to enforce often involves a complicated 

balancing of a number of factors which are peculiarly within its 

expertise. Thus, the agency must not only assess whether a violation 

has occurred, but whether agency resources are best spent on this 

violation or another, whether the agency is likely to succeed if it acts, 

whether the particular enforcement action requested best fits the 

agency's overall policies, and, indeed, whether the agency has enough 

resources to undertake the action at all. ,,11 

Agency enforcement actions are often resource intensive, such that 

calibrating enforcement within a resource-limited environment is an 

important decision in any agency's execution of the laws. 

Heckler recognized that agency non-enforcement decisions "share to some 

extent the characteristics of the 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 the Laws be faithfully 

executed.",12 Heckler also acknowledged, however, that in the agency 

10 Again, this discretion operates within the parameters remaining after Congress has been as explicit as it chooses 

to be in defining those priorities. 

11 Heckler v. Chaney, 470 U.S. 8321, 831 (1985). 

lZ Id. at 832. 

6 
55 

context at least, Congress can limit the exercise of non-enforcement 

discretion to some degree, citing Dunlop v. Bachowski as an exampleY 

Heckler explained that the statute at issue in Dunlop "quite clearly withdrew 

discretion from the agency and provided guidelines for the exercise of its 

enforcement power.,,14 

Statutes as specific as Dunlop are uncommon, however. While I have not 

myself examined all the statutes relevant to recent administration actions on 

this point, I am not aware of any statutory restrictions on enforcement 

discretion that bear on those actions. Thus, there is no need for current 

purposes to decide whether prosecutorial discretion is better understood as a 

constitutional power granted directly by the Take Care Clause of Article II, 

Section 3, or as a congressional delegation of authority implied by the 

combination of the numerous laws to execute and resource constraints. In 

either case, the decisions involved in exercising prosecutorial discretion are 

unavoidable links within the chain of decisions that have to be made in order 

to execute the laws. 

At first blush, it may seem paradoxical to say that an agency is executing 

the laws when it decides not to enforce the law, but the paradox is 

completely eliminated once one recognizes that executing laws encompasses 

many activities, not all of which can be performed at any given time. Insofar 

as making decisions about where and when to enforce frees up resources for 

other activities constitutive of law execution, non-enforcement decisions are 

part of the overall process of executing the laws. 

Whatever the ultimate provenance of prosecutorial discretion and its 

counterpart of agency non-enforcement, a number of different factors 

influence such decisions. As Wayne LaFave noted years ago, two of the 

most significant factors are limited enforcement resources and the need to 

take equitable considerations into some accountY More recently in the 

specific context of immigration law, the Supreme Court emphasized the 

significance of the second of these two, noting that 

"a principal feature of the removal system in the United States is the 

broad discretion exercised by immigration officials ... Federal officials 

as an initial matter, must decide whether it makes sense to pursue 

13 Dunlop v. Bachowski. 412 U.s. 560 (1975). 

14 470 U.S. at 834. 

15 Wayne R. LaFave. "The Protector's Discretion in the United States,'" 18 Am. J. Camp L. 532, 533-34 (1970). 

7 
56 

removal at all ... 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. The equities of an 

individual case may turn on many factors, including whether the alien 

has children in the United States, long ties to the community, or a 

record of distinguished military service."16 

When the Heckler court describes the need of an agency to decide whether 

"agency resources are best spent" on an enforcement action, that 

description provides room for equitable considerations as well as whatever 

other policy priorities the Executive, in his "considered judgment and 

conscience" thinks bear on the question of how - not whether - to execute 

the laws. 

* * * * 

I can now summarize some of the main lessons from this brief exploration of 

the nature of the laws that the executive branch must execute. Then by 

way of illustration I will suggest how these lessons apply to several of recent 

decisions, and finally will conclude with a consideration of the more general 

question of the meaning of the Take Care Clause. 

When the Executive Branch exercises delegations of discretionary authority 

granted by law it is executing the law. In deciding how to exercise 

discretion, the Executive Branch may appropriately consider equitable 

consideration and policy priorities that are not specifically prescribed by the 

Congress. Almost all statutes grant some discretionary authority, including 

the discretion to set priorities and to determine not engage in all possible 

enforcement actions. These choices are not in tension with executing the 

laws; they are part and parcel of what it means to execute the laws. Some 

of these actions may "resemble 'legislative' action," but the test of their 

legality is not that kind of eye test, rather it is to "check [them against] the 

terms of the legislation that authorized [them]." 

Both the DHS's Deferred Action for Childhood Arrivals and the Department of 

the Treasury's "transition relief" for several provisions of the Patient 

Protection and Affordable Care Act have been justified as exercises of 

discretionary authority. The administration is not claiming any authority to 

16 Arizona v. United States, 132 S. Ct. 2492, 2499 (2012). 

8 
57 

suspend any law, or otherwise to refuse to enforce any law. Even assuming 

that it is possible to see a resemblance between these administration actions 

and such labels, the proper approach to them must begin by taking the 

administration at its word, because if they are defensible as exercises of 

discretion granted by law, any such resemblance is immaterial. 

First, consider DHS's Deferred Action for Childhood Arrivals. While Secretary 

Napolitano's memorandum memorializing her Deferred Action for Childhood 

Arrivals is brief, it relies explicitly on scarce resources, equitable 

considerations and policy choices, which are classic factors influencing 

decisions not to enforce, and it seems to be quite in line with the Supreme 

Court's recent recognition of the role that "immediate human concerns" play 

in immigration decisions. 1

? The Secretary noted that she is announcing the 

decision in order to "ensure that our enforcement resources are not 

expended on these low priority cases but are instead appropriately focused 

on people who meet our enforcement priorities." As for her reasons for 

assigning low priority to the cases of undocumented children who were 

brought into this country as children and know only this country as home, 

she stated that 

"Our Nation's immigration laws must be enforced in a strong and 

sensible manner. They are not designed to be blindly enforced without 

consideration given to the individual circumstances of each case. Nor 

are they designed to remove productive young people to countries 

where they may not have lived or even speak the language. Indeed, 

many of these young people have already contributed to our country 

in significant ways. Prosecutorial discretion, which is used in so many 

other areas, is especially justified here. ,,18 

Not only does the deferred action seem to be well grounded in the general 

understanding of prosecutorial discretion, both the Department of Homeland 

Security and the INS prior to DHS's creation have apparently long treated 

deferred action as a species of prosecutorial discretion authorized by the 

immigration laws, with instances of exercising this authority documented at 

17 See Arizona v. United States, note lS, above. 

18 Memorandum from Janet Napolitano, Secretary of Homeland Security, Re: "Exercising Prosecutorial Discretion 

with Respect to Individuals Who Came to the United States as Children," June lS, 2012. Available at 

http://wwi,v .dhs.gov/xlibrarv/asscts/sl-C'xercising prosecutorial-discretion -individuals-who cam£'-to- us-as 

children, pdf 

9 
58 

least back to 1975. 19 It is fair to assume that Congress has been aware of 

this longstand ing practice and has at least implicitly acquiesced in it. 

Similarly, the Treasury defends its "transition relief" with respect to several 

tax-related provisions of the ACA as exercises of discretionary authority that 

has been granted by law. In a letter to Congressman Upton of July 9, 2013, 

Assistant Secretary of the Treasury for Tax Policy Mark Mazur references 

these authorities in explaining the basis for such decisions announced on 

July 2,2013. 20 Specifically, the letter states that Section 7805(a) of the 

Internal Revenue Code grants discretionary authority to Treasury to provide 

such relief. The letter also references a number of occasions in the past in 

which the effective date of tax-related provisions have been extended, 

documenting cases going back at least to 1999, including several during the 

George W. Bush administration. The letter further states that because of 

problems in the reporting requirements noted by stakeholders as well as 

other impediments to the effective implementation of the these and other 

requirements, it is using its long-standing discretionary authority to delay 

them for one year. 

The exercise of this discretionary authority must be compared to the terms 

of the Affordable Care Act. Does the presence of an effective date in the 

statute eliminate the Treasury Department's discretion to provide 

transitional relief? There are sound reasons for Treasury to have concluded 

that it does not. To begin with, as evidenced by all the prior uses of this 

authority, the very nature of the long-standing transitional relief authority 

under 7805(a) is to provide relief from the effective dates of new tax 

provisions. There is nothing in the ACA's enactment of its effective dates to 

distinguish those in the ACA from any of those found in earlier legislation, as 

to which the Treasury's discretionary authority has been applied. 

I am not aware of any case law interpreting the scope of Treasury's claimed 

authority, but if Treasury's lawyers were looking for analogous judicial 

interpretations, they might have consulted the case law interpreting 

challenges to other agencies' failure to meet explicit statutory deadlines for 

taking actions such as issuing rules and regulation. This case law is quite 

unsettled, but the guidance that can be gleaned from the decisions of the 

19 See Shoba Sivaprasad Wadhia, "Response: In Defense of DACA, Deferred Actin, and the Dream Act at 65-68, 

available at ~j:!pjj~~C_CI_"Lqn]/~J??!fi!~1-?:l~~)~5_. 

20 A va il a bl e at: http:( (www.seribd.com(dae(153011058(Trea su ry-Lette r -T a-G OP-Dele nd ing-ACA-s-E m pi aye rMandate-Delay. 

10 
59 

D.C. Circuit, which are the most important for the judicial review of many 

administrative actions, would not have discouraged Treasury's 

interpretation. 

The leading D.C. Circuit decision evaluating when a court can "compel 

agency action unlawfully withheld or unreasonably delayed/'21 is 

Telecommunications Research & Action Center v. FCC. 22 It articulates a set 

of five factors courts should consider to decide whether an action is 

unreasonably delayed. The case arose in the context of a statute that did not 

contain an explicit deadline, but the D.C. Circuit continues to apply its five 

factors when a statutory deadline is presentY While the existence of a 

deadline is taken into account, the court continues to weigh all the factors to 

reach case-by-case determinations. If Treasury had applied these factors to 

the question of the reasonableness of delaying the ACA effective dates, it 

could well have thought it had discretion to proceed. 24 

It is not my intention to resolve this or any other question of discretionary 

authority with regard to actions that others have thought constitute 

breaches of the President's duty to take care that the laws be faithfully 

executed. What I have tried to do is to articulate the appropriate way to 

understand what it means to execute the laws faithfully in the context of 

statutes that grant discretionary authority and to emphasize that analysis of 

the propriety of any exercise of discretionary authority under such statutes 

must begin with the statutes and the authorities they grant. If the action 

can be squared with them, taking into account the full array of discretion 

that has been granted by law, then the action is faithfully executing the 

laws, even if it is not enforcing the law in some particulars and even if it 

21 5 U.S.c. §706(1). 

22 Telecommunications Research and Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984). 

23 E.g., In Re Barr Laboratories, Inc., 930 F.2d 72 (D.C. Cir. 1991) 

24 The five factors are: 

(1) the time agencies take to make decisions must be governed by a "rule of reason;" (2) 

where Congress has provided a timetable or other indication of the speed with which it 

expects the agency to proceed in the enabling statute, that statutory scheme may supply 

content for this rule of reason; (3) delays that might be reasonable in the sphere of economic 

regulation are less tolerable when human health and welfare are at stake; (4) the court should 

consider the effect of expediting delayed action on agency activities of a higher or competing 

priority; (5) the court should also take into account the nature and extent of the interests 

prejudiced by delay; and (6) the court need not find any impropriety lurking behind agency 

lassitude in order to hold that agency action is unreasonably delayed. 750 F .2d at 80. 

Factors 3, 4 and 5 suggests reasons why a temporary delay to the ACA tax provisions could be considered 

reasonable. 

11 
60 

resembles legislative action. The question of whether the executive branch 

is right or wrong in any particular instance or instances is surely an 

appropriate matter for discussion, but it is a discussion about statutory 

interpretation or construction. So far as I am aware, in no instance has the 

President or any of his subordinates asserted a claim to act without statutory 

authority, let alone to violate, suspend or dispense with a statute. 

Suppose, however, that the Executive Branch has taken an action outside 

the boundaries of the statutes' grants of discretion. Is the President then 

guilty of violating his constitutional duty? In my view, not by virtue of this 

fact alone. The President's duty is to take care that the law is faithfully 

executed, not that it is flawlessly executed. With the courts as final arbiters 

of what the law is in many situations, and with many questions of 

discretionary authority being contestable by reasonable people, it would be 

impossible for any President to discharge such a duty. This conclusion is 

enforced by the fact that there are thousands of decisions on the books in 

which a court has vacated agency action because it was outside the 

authorities granted by statute, yet to my knowledge none of them has 

suggested that legal errors by the Executive in interpreting the scope of its 

discretionary statutory authority imply that the Executive has been faithless 

in executing the laws, or that the President is in violation of his constitutional 

duty to ensure that his subordinates are faithful to those laws. 

Because mere legal error is consistent with faithful execution of the laws, I 

do not believe the avoidance of legal error goes to the heart of the 

President's obligation. The heart of the matter, rather, seems to have been 

anticipated by the earlier quotation from Roscoe Pound, even though Pound 

was not speaking directly to the President's duty. Exercising "considered 

judgment and conscience" contemplates a good faith and conscientious 

effort to take actions within the discretionary authority granted by law. So 

long as the President is taking care to ensure that this is being done, he is 

discharging his constitutional obligation. 

I thank the members of the Committee for their time, and I look forward to 

answering any questions you may have. 

12 
61 

Mr. GOODLATTE. Thank you, Mr. Schroeder. 

Ms. Foley, welcome. 

TESTIMONY OF ELIZABETH PRICE FOLEY, PROFESSOR OF 

LAW, FLORIDA INTERNATIONAL UNIVERSITY, COLLEGE OF 

LAW 

Ms. FOLEY. Thank you. Mr. Chairman, Ranking Member Conyers—— 

Mr. GOODLATTE. You want to make sure that microphone is on 

and close to you. 

Ms. FOLEY. I believe it is on. 

Mr. GOODLATTE. There go you. 

Ms. FOLEY. There we go. Okay. Mr. Chairman, Ranking Member 

Conyers, Members of the Committee, my name is Elizabeth Price 

Foley. I am a professor of constitutional law at Florida International University College of Law. I am absolutely honored to be 

here today to talk about this topic. 

I have provided the Committee with what I consider to be a road 

map of how the House can establish standing to sue the President 

as a means to enforce his constitutional duty to take care that the 

laws be faithfully executed. I believe Congress would, in fact, have 

standing to sue the President to enforce his duty of faithful execution, provided a four-part test is satisfied. 

First, the institutional injury alleged should be one that can be 

characterized as a nullification of a legislative act. The Supreme 

Court in Raines v. Byrd made it clear that if Members want to assert an institutional injury, the executive’s act must effectively nullify a prior act of Congress. So, for example, if Congress declares 

X in a law, a nullification would be an executive act that effectively 

declares not X. 

So let us say Congress passes a law that says anyone who enters 

this country illegally shall be deportable. An executive act that declares a group of illegal immigrants to not be deportable would be 

a nullification of that law. Say Congress also enacts a law that says 

it shall, in fact, go into effect in 2014. An executive act that says 

the law shall not go into effect in 2014, but instead 2015, 2016, or 

whatever, would also clearly be a nullification. 

Second, the lawsuit should be explicitly authorized by a majority 

of the House. This is because the case law indicates that when 

Members assert an institutional injury, we have to make sure this 

is not a sore loser lawsuit that is brought by sort of an ad hoc, disgruntled group of legislators. Explicit authorization for litigation is 

critically important because what it does is it signals to the Court 

that the institution as an institution believes it has been injured. 

Third, the lawsuit should target the President’s, what I call, benevolent suspensions of law, which means that there would be no 

private plaintiff available to adjudicate the constitutionality of the 

President’s acts. A benevolent suspension of law is when the President grants a privilege or a waiver from the operation of law to a 

certain group of people that, of course, the President himself defines. So, for example, when the President delays provisions of 

Obamacare but not other provisions, or he decides not to deport 

some young people who have entered this country illegally, he be-
62 

nevolently has suspended the law with regard to that group of people. 

In these situations, the individuals are not sufficiently harmed to 

satisfy personal injury requirements of standing. In fact, no individuals are. Think about it. When you delay an employer mandate 

to provide health insurance, when you decide not to deport certain 

young illegal aliens, these actions undermine our laws certainly 

and our constitutional separation of powers. But they do not hurt 

any individuals enough to allow them to challenge the President’s 

acts. In fact, if the constitutionality of benevolent suspensions of 

law is ever going to be resolved, it must be resolved through litigation by Congress against the President. 

Fourth, the lawsuit should target presidential acts for which legislative self-help is not available. The reason self-help is salient to 

the courts is because they want to make sure that Congress could 

not just simply undo the executive’s acts by simple majoritarian 

vote. But think about it again. When a president fails to faithfully 

execute the law, there is no simple majoritarian remedy available 

because what Congress wants in this situation is for the existing 

law to be enforced. 

Repealing a law that the Congress simply wants executed is obviously not a remedy here. Congress also could not enact another law 

in this situation because it has already enacted the law it thinks 

it wants. Congress again wants the existing law to be enforced. 

We should not also have to resort to the drastic act of impeachment. Peaceful court resolution is going to be a lot easier here, and 

I think that is what the courts would find. What Congress wants 

here, again, is faithful execution of the law. It may not think that 

the President should be entirely removed from office. It just wants 

the President to faithfully execute the law. 

Peaceful resolution of disputes between Congress, and the Court, 

and the president has been accepted by the courts since Marbury 

v. Madison, and faithful execution of the laws disputes should be 

no different. Separation of powers is clearly a critically important 

principle, and I think it is something that all Members of Congress, 

regardless of political persuasion, should want to see preserved. In 

the case particularly of benevolent suspensions, the only recourse, 

again, is for Congress to seek a court’s declaration of the constitutionality of the President’s acts. 

These are serious constitutional questions. There are reasonable 

arguments on both sides. They deserve a full and fair hearing in 

our courts of law. Thank you. 

[The prepared statement of Ms. Foley follows:] 
63 

Written Statement 

Elizabeth Price Foley 

Professor of Law 

Florida International University 

College of Law 

"Enforcing the President's Constitutional Duty to Faithfully Execute the Laws" 

Committee on the Judiciary 

U.S. House of Representatives 

February 26,2014 

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

Committee, my name is Elizabeth Price Foley and I am a professor of constitutional 

law at Florida International University College of Law, a public law school located in 

Miami, Florida. I am grateful for the opportunity to testify before you today to 

discuss how Congress can enforce its constitutional lawmaking prerogative against 

Executive encroachment. 

The Committee held a hearing on December 3, 2013, exploring whether the 

President has failed to execute his constitutional duty to take care that the laws be 

faithfully executed. The record in that hearing amply documents why President 

Obama's actions are qualitatively different from those of his predecessors and thus 

raise serious constitutional questions. I am not here to re-litigate the merits ofthat 

substantive question, but will instead focus my remarks exclusively on the issue of 

"congressional standing" to sue the President to enforce his duty of faithful 

execution and, as an inherent corollary, to defend Congress's exclusive legislative 

prerogative. 

How can Congress best position itself to have standing to sue a President whom it 

believes has failed in his duty of faithful execution? To briefly summarize the 

position I elaborate upon below: I believe Congress would have standing to sue the 

President for failure of his faithful execution duty, provided such a lawsuit is 

carefully circumscribed to satisfy a four-part test: 

(1) Explicit legislative authorization: The lawsuit should be explicitly authorized by 

a majority of the House. It cannot be a "sore loser" suit initiated by an ad hoc, 

disgruntled group oflegislators. 

(2) No private plaintiff available: The lawsuit should target the President's 

"benevolent suspension" of an unambiguous provision of law, such that there would 

be no private plaintiff available to adjudicate the propriety of the suspension. 
64 

(3) No political "self-help" available: The lawsuit should target presidential action 

that cannot be remedied by a simple repeal of the law. 

(4) "Nullification" of institutional power injury: The institutional injury alleged 

should be one that reasonably can be characterized as a nullification of legislative 

power. 

The last element-an injury-in-fact that is tantamount to a nullification of 

institutional power-is a constitutional (Article III) prerequisite to the court's 

recognition of standing in the special context of a legislator lawsuit alleging 

"institutional" injury. The other three elements-explicit authorization; no 

available private plaintiff; no available political self-help-are prudential 

considerations that courts have intimated are important in assessing whether the 

dispute is sufficiently cabined to overcome the judiciary's general and 

understandable hesitancy to interject itself into political branch disputes. These 

three prudential considerations-along with the constitutional injury-in-fact 

element-provide a limiting principle, assuring the courts that adjudication will not 

open the door to limitless legislator lawsuits against the executive branch in the 

future. 

When all four elements exist, a court would likely overcome its hesitancy and find in 

favor of congressional standing because such a case presents an unusual and 

unpalatable dilemma: If the court does not allow standing in such a situation, 

separation of powers concerns (from whence the standing doctrine derives) will 

prevent the judiciary from preserving separation of powers. In other words, when 

all four elements are present, the court effectively must adjudicate unless it is 

prepared to accept that it is powerless to preserve the constitutional architecture of 

separation of powers. If it does not adjudicate, the President will have carte blanche 

to exceed his constitutional powers because there are neither any private plaintiffs 

available to check him (element two), nor any reasonable way for Congress to check 

him (element three). 

I will proceed to explore each of these four factors, and how I believe they may be 

present, should the House wish to initiate litigation. 

I. THE CONSTITUTIONAL ELEMENTS OF STANDING 

In order to maintain a lawsuit in federal court, the plaintiff must have "standing" to 

sue. The requirement of standing derives from the language in Article III, section 

two of the Constitution, which extends the federal judicial power only to certain 

kinds of "cases" and "controversies." In order to have a "case" or "controversy" 

within the meaning of Article III, the Supreme Court has identified three standing 

2 
65 

elements: (1) an injury-in-fact; (2) fairly traceable (caused by) the defendant's 

conduct; and (3) redressability by the court.1 

Assuming that the elements of causation and redressability would not be in issue in 

a lawsuit disputing the President's faithful execution oflaw, I will focus on the first 

element-injury-in-fact-and whether/when such an injury exists. 

To have standing, the plaintiff's alleged injury must not be abstract, conjectural, or 

hypotheticaJ.2 The plaintiff( s) must have suffered-or be in imminent risk of 

suffering-direct harm from the defendant's acts. 

Lawsuits brought by legislators are subject to the same Article III standing 

requirements as all other lawsuits. However, the Supreme Court in Raines v. Byrd 

declared that, in applying these requirements in the specific context of a legislator 

lawsuit, a court should be "especially rigorous.":, While the Court has never specified 

what, precisely, it means by "especially rigorous," it has stated that the purpose of 

such additional rigor lies in prudential considerations-namely, its desire to "keep[] 

the Judiciary's power within its proper constitutional sphere," and avoid 

unnecessarily involving itself in disputes among the political branches.4 This goal 

dictates that courts "carefully inquire" as to whether plaintiffs injury is sufficiently 

concrete and particularized. 5 

Raines is best conceptualized as establishing a rebuttable presumption against 

adjudicating legislator lawsuits. Thus, if there is an institutional injury of sufficient 

concreteness (discussed in the next section), courts will be amenable to adjudicating 

legislator lawsuits when prudential factors counsel in favor of adjudication. In other 

words, Raines does not establish a prohibition on legislator standing as a general 

matter; legislators can indeed have standing to sue the executive under the right 

circumstances. 

1 See Lujan v, Defenders of Wildlife. 504 U,S, 555, 560 (1992); Valley Forge Christian College v, 

Americans United for Separation of Church and State, Inc" 454 U,S, 464, 472 (1982), 

'Lujan, 504 U,S, at 560 ("[T]he plaintiff must have suffered an 'injury in fact'-an invasion of a 

legally-protected interest which is (a) concrete and particularized and (b) actual or imminent, not 

'conjectural' or 'hypothetical."') (internal citations omitted); Allen v, Wright, 468 U,S, 737, 751(1984) 

["The injury alleged must be, for example, 'distinct and palpable,' and not 'abstract' or 'conjectural' or 

'hypotbetical',") (internal citations omitted). 

3 Raines v, Byrd, 521 U,S, 811, 819-20 (1997) ["And our standing inquiry has been especially rigorous 

when reaching the merits of the dispute would force us to decide whether an action taken by one of 

the other two branches of the Federal Government was unconstitutional."). 

4 Id, at 82 0 ("In the light of this overriding and time-honored concern about keeping the Judiciary's 

power within its proper constitutional sphere, we must put aside the natural urge to proceed directly 

to the merits of this important dispute and to 'settle' it for the sake of convenience and efficiency. 

Instead, we must carefully inquire as to whether appellees have met their burden of establishing that 

their claimed injury is personal, particularized, concrete, and otherwise judicially cognizable. "). 

5 hi, 

3 
66 

II. INSTITUTIONAL INJURY 

As a preface to this discussion, it may be worthwhile to engage in the following 

thought experiment: 

Imagine a very charismatic Speaker of the House declares himself Commanderin-Chief of the U.S. armed forces. He convinces a majority ofhis colleagues in 

the House to pass H. Res. 123, authorizing the Speaker to direct the generals of 

the U.S. armed forces. 

The Speaker then commands the generals to cease operations in a foreign 

country, where the U.s. has had ongoing military operations for severalyears. 

The generals comply but there are grumblings about whether H. Res. 123 is 

constitutional, with some high-ranking military officials insisting that it is, and 

others insisting that it is not. Constitutional law professors and practitioners 

are similarly divided on the constitutional question. 

The President has lost command of the military. The Speaker of the House 

(with support of his House colleagues) has arguably violated the Constitution's 

separation of powers, as Article 1I, section 11 of the Constitution grants the 

President power to be Commander-in-Chief of the armed forces. 

Putting the merits consideration of the constitutionality of the Speaker's 

actions aside, consider the preliminary procedural hurdle: Can the President 

sue the Speaker, seeking a court declaration of the unconstitutionality of the 

Speaker's acts? In other words, would the President have institutional 

"standing" to sue the Speaker? 

Assume further that because the Speaker's only action thus far-ordering a 

cessation ofmilitary operations in a foreign country-is a "benevolent" act, no 

individual has been harmed in a sufficiently personal, concrete way, so as to 

establish injury sufficient for standing to sue the Speaker. 

If there is to be any justiciable lawsuit at all, it will be because the President 

convinces the court that he has suffered "institutional" injury to his Article Il 

powers. 

If you believe the President should have standing to bring a lawsuit against the 

Speaker (and not have to resort to more aggressive self-help such as attempting to 

order a few, still loyal military personnel to arrest the Speaker), do you also believe 

that Congress should have standing to sue the President if the President takes action 

to infringe Article I powers? 

4 
67 

In other words, do you believe lawsuits by Article I against Article II should be just 

as justiciable as lawsuits by Article II against Article I? 

Concededly, when Article I sues Article II, a court faces some challenges not 

normally present when Article II sues Article I. Specifically, ascertaining 

"institutional" injury is more challenging for the simple fact that there are many 

more members of Article I (435 in the House; 100 in the Senate) than Article II 

(one). Courts faced with an institutional injury claim initiated by members of Article 

I, therefore, must check to make sure two things exist that are not normally 

questionable when Article II sues Article I: 

(1) Institution check: The court must check to ensure that the Article I members 

initiating the lawsuit-the plaintiff-legislators-represent the institution qua 

institution, not merely their own personal objections to something the Executive has 

done; and 

(2) Injury check: The court must check to ensure that the "institutional" injury 

alleged by the plaintiff-legislators is indeed an injury to the institution qua 

institution-namely, that the Executive has committed an act that directly 

contradicts, or nullifies, an act of Congress. 

If Article I plaintiffs survive these two checks, the court should find that they have 

standing to bring an institutional injury lawsuit against the President, just as the 

President should have standing to bring an institutional injury lawsuit against 

Congress. 

Now let's proceed to examine the relevant case law that fleshes out how courts have 

struggled with these two checks. 

A. Distinguishing "Private" Injury from "Institutional" Injury 

The Supreme Court has articulated a distinction between legislator lawsuits that 

allege "private" injury versus "institutional" injury. This distinction necessitates a 

consideration of the nature of the injury alleged: Is the injury one that is felt by the 

member as an individual, distinct from his colleagues? Or is it one that has been 

suffered by all members of the legislature and thus harms the institution as a whole? 

Very few lawsuits brought by legislators are private injury lawsuits; most ofthem 

have been brought as institutional injury cases. This does not mean that 

institutional injury suits are commonly justiciable; they often are not, as I will detail 

in the next section. It simply means that most lawsuits brought by legislators have 

historically involved allegations of institutional rather than private injury. 

5 
68 

One notable example of a private injury lawsuit is Powell v. McCormack. 6 In Powell, 

Congressman Adam Clayton Powell and thirteen of his constituents sued the 

Speaker of the House and other House officials, asserting that a House resolution 

excluding Powell from the chamber-based upon an investigation revealing 

improprieties relating to travel and staff expenses-violated various constitutional 

provisions. The Supreme Court held that Powell's exclusion from the House 

presented a justiciable case or controversy, and has subsequently made clear that 

Powell is a case involving a private legislator injury.7 

But again, the vast bulk of legislator lawsuits have not involved Powell-like private 

injuries.B Instead, they have involved allegations of institutional injury to the 

legislature itself. Any House or Senate lawsuit against the President based upon the 

President's failure to faithfully execute would inherently involve an institutional 

injury, so I will proceed to analyze the kind of institutional injury that the courts 

have (and have not) deemed sufficient for standing. 

B. Institutional Injury Cases 

1. Supreme Court Institutional Injury Cases-Raines (1997) & Coleman 

(1939) 

There have been two Supreme Court cases addressing legislator standing to sue the 

executive: (1) Raines v. Byrd; and (2) Coleman v. Miller. The former (Raines) denied 

legislator standing; the latter (Coleman) allowed it. The key to understanding the 

difference in outcome between these two cases is the nature ofthe "institutional" 

injury alleged. There were also significant prudential distinctions in the posture of 

these two cases, which will be discussed in the next section examining the three 

prudential factors. For now, however, I will focus exclusively on the element of 

institutional injury-in-fact as it existed in these two cases. 

The plaintiffs in Raines were six members of Congress (four senators; two House 

members) who voted against the Line Item Veto Act. After their legislative 

colleagues enacted the bill and President Clinton signed it into law, these six 

members filed their lawsuit challenging the constitutionality of the Act. The harm 

they alleged was that in passing the Act, their voting power as members of Congress 

had been diminished.9 

0395 U.S. 486 (1969). 

7 See Raines v. Byrd, 521 U.s. 811, 821 (1997) (Unlike the injury claimed by Congressman Adam 

Clayton Powell, the injury claimed b the Members of Congress here is not claimed in any private 

capacity but solely because they are Members of Congress."). 

8 For another, recent legislator lawsuit involving allegations of private injury, see Rangel v. Boehner, 

__ F. Supp.2d ____ ,2013 WL 6487502 (D.D.C. Dec. 11, 2013) (denying standing to censured House 

mem her for various private injury claims). 

9 The Raines Court observed that the plaintiffs "alleged that the Act injured them 'directly and 

concretely ... in their official capacities' in three ways: 

6 
69 

The Supreme Court held that the Raines plaintiffs lacked standing. The institutional 

injury asserted by the legislators-a diminution of legislative power-rendered the 

injury-in-fact element less "concrete" than a private injury claim such as that 

asserted in the Powell v. McCormack case.IO And under the specific circumstances of 

Raines case, this institutional injury was too "abstract and widely dispersed." 11 

So what made the institutional injury in Raines too abstract and dispersed? First, 

the President had not yet actually exercised the line item veto.12 Indeed, the lack of 

presidential action triggered a ripeness objection in addition to the standing 

objection, but the Supreme Court did not rule on the ripeness issue.13 

Perhaps the reason why the Court did not rule on the ripeness issue is because the 

plaintiffs' complaint alleged that the Act was facially unconstitutional, and there was 

little doubt that the President would eventually exercise his newfound cancellation 

power. But this realization implies that the Court understood that the plaintiffs' 

objection was to the Act itself-namely, that the Act unconstitutionally expanded 

the President's power in various ways.l4 The legislators' complaint was thus aimed 

against their own colleagues in Congress, who had passed the Line Item Veto Act 

over the plaintiffs' objections. The defendant in the case-Franklin Raines, the OMB 

Director-was named because the lawsuit sought to enjoin him from implementing 

the Act if/when the President exercised the line item veto. 

The Act ... [a) alter[s] the legal and practical effect of all votes they may cast on hills 

containing such separately vetoable items, (b) divest[s] the [appellees] of their constitutional 

role in the repeal oflegislation, and (c) alter[s] the constitutional balance of powers between 

the Legislative and Executive Branches, both with respect to measures containing separately 

vetoable items and with respect to other matters coming before Congress. 

Raines, 521 U.s. at 816. 

1I11d. at 821 ("Their claim is that the Act causes a type of institutional injUly (the diminution of 

legislative power) which necessarily damages all Members of Congress and both Houses of Congress 

equally. Second, appellees do not claim that they have been deprived of something to which they 

personally are entitled-such as their seats as Members of Congress after their constituents had 

elected them. Rather, appellees' claim of standing is based on a loss of political power, not a loss of 

any private right, which would make the injury more concrete.") (emphasis in original). 

llld. at 829. 

12 Indeed, the Raines plaintiffs filed their lawsuit the very next day after the President signed the Line 

Item Veto Act into law. [d. at 814. 

13 The district court denied the ripeness objection as well as the standing objection. 956 F. Supp. 25, 

32 (D,D.C. 1997) ("The issues in this case are legal, and thus will not be clarified by further factual 

development. In what context and when the President cancels an appropriation item is immaterial. 

The Court will be no better equipped to weigh the constitutionality of the Presidents cancellation of 

an item of spending or a limited tax benefit after the fact; the central issue is plain to see right now."). 

14 Raines, 521 U,S. at 816 ("Specifically, they alleged that the Act 'unconstitutionally expands the 

President's power,' and 'violates the requirements of bicameral passage and presentment .... "). See 

also infra note 9. 

7 
70 

When one understands the true nature ofthe dispute in Raines-an "institutional" 

injury alleged by a group of legislators who were angry at their own colleagues' 

delegation ofiegislative power to the President-it becomes clear why institutional 

injury could not be established. The legislator-plaintiffs in Raines complained that 

they had suffered "dilution" oftheir voting power. And presumably, this dilution of 

legislative power was suffered by all oftheir congressional colleagues, not merely 

the individual plaintiffs, and was thus an "institutional" rather than "private" injury. 

But this institutional injury had its genesis in Congress itself and its passage of the 

Line Item Veto Act. 

A legislator lawsuit alleging an institutional injury-in-fact suffered as a result of an 

act approved by the majority of her legislative colleagues is difficult for a court to 

characterize as an "institutional" injury. If a majority of legislators do not believe 

they have been injured, why would the judiciary second-guess that conclusion, 

particularly when the judiciary is hesitant to embroil itselfin political disputes? 

Such an intra-branch political dispute properly counsels particular judicial 

hesitation. Indeed, the Raines majority acknowledged this by pointing out that, 

unlike Coleman v. Miller (which will be discussed next), the legislators had not had 

their legislative desires thwarted by the executive but by their own colleagues. In 

other words, "They simply lost that vote."15 

Second, the institutional injury alleged in Raines did not rise to the level of 

concreteness of Coleman v. Miller16-the Court's one prior decision recognizing 

legislator standing for institutional injury. As the Raines Court put it, "There is a 

vast difference between the level of vote nullification at issue in Coleman and the 

abstract dilution of institutional legislative power that is alleged here."1? 

So what was the "level of vote nullification at issue in Coleman"? In Coleman, 

twenty-one out of forty Kansas State senators (a majority) sought mandamus 

against various state executive officers in an attempt to prevent authentication of 

Kansas's ratification of a proposed federal Child Labor Amendment. 18 The senators 

asserted that their State's ratification of the amendment was unconstitutional under 

Article V ofthe U.S. Constitution because the Kansas senate had rejected the 

amendment by a 20-20 vote, and the tie was improperly broken by a favorable vote 

cast by the Lieutenant Governor. 

15Id. at 824. 

16 307 U.S. 433 (1939). 

17 Raines, 521 U.S. at 826. 

IB The 21 plaintiff-senators included 20 senators who had voted against the Child Labor Amendment. 

One additional senator (who had supported the amendment) and three members of the Kansas 

House joined their colleagues in an attempt to vindicate the Senate's prerogative to decide the 

question without tie-breaking interference from the Lieutenant Governor. See Culeman, 307 U.S. at 

436. 

8 
71 

The U.S. Supreme Court sustained the senators' standing to challenge the validity of 

their state's ratification, concluding that the senators' votes against the amendment 

"have been overridden and virtually held for naught" if their assertions on the merit 

were correct. 19 The Coleman Court concluded that the senators had a "plain, direct 

and adequate interest in maintaining the effectiveness oftheir votes."20 

What made the Coleman plaintiffs' institutional injury sufficient for standing? The 

Raines Court subsequently characterized Coleman as holding that "legislators whose 

votes would have been sufficient to defeat (or enact) a specific legislative Act have 

standing to sue if that legislative action goes into effect (or does not go into effect), 

on the ground that their votes have been completely nullified."21 The key, in other 

words, seems to be that the institutional injury alleged must be tantamount to a 

complete nullification of a legislative act If the executive acts in such a way that a 

legislature's vote (to enact or not enact) on issue X is effectively nullified/undone by 

executive action, there will be "institutional injury" of sufficient concreteness to satisfy 

Articie III standing. 

In a lawsuit challenging the President's failure to faithfully execute the law, injury 

asserted would be as follows: By failing to faithfully execute the law (an assertion 

that is assumed to be true at the preliminary stage of a motion to dismiss),22 the 

President has completely nullified that portion of the law with which he is refusing 

to comply. If Congress passes a law that declares "X" and the President takes action 

that declares "not X," then X has been nullified. 

Imagine, for example, that Congress passes a law that says that "[a]ny alien ... shall 

... be removed" if the alien was inadmissible at the time of entry into the U.S.23 

Then imagine that the President declares that-as a matter of policy that cannot be 

plausibly characterized as an exercise oflaw enforcement discretion-a large 

category of illegal immigrants may obtain deferral of deportation and obtain 

employment authorization to remain in the country indefinitely.24 Imagine further 

191d. at 438. 

20ld. 

21 Raines, 521 U.S. at 823. 

22 The question whether the President has, in fact, failed to faithfully execute the law is a subsequent 

question that goes to the merits of the legislator-plaintiffs' claims. At a motion to dismiss stageincluding a 12[b)[l) motion to dismiss for want of subject matter jurisdiction (which is the proper 

motion when there is a lack of stand in g)-the court must assume the allegations of a failure to 

faithfully execute are true. See Warth v. Seldin, 422 U.S. 490, 501 (1975) ("For purposes of ruling on 

a motion to dismiss for want of standing ... courts must accept as true all material allegations of the 

complaint, and must construe the complaint in favor of the complaining party."). 

23 8 U.s.c. § 1227(a). 

,. See Deferred Action for Childhood Arrivals U.s. Dep't of Homeland Security, 

9 
72 

that this executive suspension of immigration law is virtually identical to legislative 

reform proposals that had been debated extensively by Congress, but ultimately 

rejected.25 Under such circumstances, is there any doubt that: (1) congressional 

power to define the contours of amnesty has been severely curtailed; (2) existing 

immigration law-mandating deportation for those who entered the country 

illegally-has been nullified; and (3) congressional rejection of amnesty for such 

individuals also has been nullified? 

Significantly, when a President fails to faithfully execute a law, he nullifies not only 

the existing law, but also severely diminishes congressional power to legislate in the 

future. The President's action changes the entire political landscape, diluting the 

power of every member by making Congress's constitutionally enumerated powers 

superfluous and redundant. If the President can take actions that conflict with the 

commands of Congress (without any independent, Article II authority), he can both 

nullify existing laws and render Congress unnecessary for future action. This isn't 

the mere nullification of a single vote, as was held to be sufficient for institutional 

injury-in-fact in Coleman. It is the nullification of the legislature as a legislature. An 

institutional injury of this magnitude far exceeds that of Coleman. 26 

Moreover, in the situation where the injury is a nullification of both specific 

legislative acts as well as legislative power generally, caused by the President's 

failure to faithfully execute, the injury is an institutional one, not merely a "sore 

loser" lawsuit as was the case in Raines. An ad hoc group of plaintiff-legislators who 

want to litigate their policy disagreement with their own colleagues does not 

present an Article III "controversy" about an "institutional" injury-it presents an 

intra-institutional disagreement inappropriate for judicial resolution. 

But when there is no doubt that the legislature qua legislature is concretely opposed 

to the action ofthe executive-the two branches are unequivocally at loggerheads 

over the distribution of powers between them-an Article III case or controversy 

exists that courts may adjudicate, particularly if one or more of the three prudential 

factors are present, as the subpoena cases discussed in the next subsection suggest. 

2. Post-Raines Institutional Injury Cases in the D.C. Circuit and District 

Court 

25 See Naftali Bendavid, Dream Act Fails in Senate, WALL ST. JOURNAl., Dec. 19, 2010, available at 

ltttp:1LQJJlllJ~,l'8"'!ll1}L11"-w,LmLc~~lS111llDjlH240 !i2l4B1Jl'B 6JlOll451filln52084l'2JD·t211. 

"Accord Kerrv. Hickenlooper, 880 F. Supp.2d 1112, 1131 (D. Colo. 2012) ("As alleged, this injUly is 

of a greater magnitude than the single instance of vote nullification in Coleman . ... The inj ury 

alleged here is a concrete injury involving the removal of a 'core' legislative power of the General 

Assemhly .. The allegations of the Operative Complaint are of such a magnitude that the term 'dilution 

of institutional power' appears insufficient to describe the alleged injury [the act] has effected on 

Plaintiffs' core representative powers."). 

10 
73 

The D.C. Circuit and the federal district court in D.C. have offered some useful postRaines guidance regarding the meaning oflegislative "nullification" that is sufficient 

to establish an institutional injury. 

In general, these D.C. cases can be lumped into two categories: (1) non-subpoena 

cases, and (2) subpoena cases. The former have generally not recognized legislator 

standing, whereas the latter have. There does not appear, however, to be a 

meaningful, theoretical distinction between the subpoena and non-subpoena 

outcomes. In other words, while the non-subpoena cases generally have not been 

successful, it is because the four elements identified in this paper have not been 

satisfied, not because the D.C. Circuit has expressed an objection to legislator 

standing in non-subpoena cases. Indeed, as will be discussed below, the subpoena 

cases indicate that where the four elements do exist, federal courts in D.C. are quite 

willing to allow institutional injury legislator lawsuits against the executive. 

a. Non-subpoena cases 

The D.C. federal courts have decided several non-subpoena cases involving an 

allegation of institutional legislative injury. I will examine two of the most 

important post-Raines cases decided by the D.C. Circuit: (1) Campbell v. Clinton; and 

(2) Chenoweth v. Clinton. In both cases, legislative standing to assert institutional 

injury was denied. 

In Campbell v. Clinton, the D.C. Circuit denied standing to 31 members of the House 

who sued President Clinton, claiming the sending of U.S. troops to Kosovo, 

Yugoslavia violated the War Powers Act and the War Powers Clause of the 

ConstitutionP The legislator-plaintiffs in Campbell made a Coleman "nullification" 

argument, claiming that their votes against a resolution authorizing Yugoslavian air 

strikes (which failed in a 213-213 tie) as well as a resolution declaring war (which 

failed 427-2) had been nullified by the President's action.28 

The D.C. Circuit rejected the nullification argument, noting that while the President 

had indeed acted in disagreement with the 31 legislator-plaintiffs' desires, he had 

not acted against congressional direction. The congressional resolutions seeking a 

declaration of war and authorization of air strikes had failed, but Congress had also 

rejected a resolution directing the President to immediately end U.S. participation in 

the NATO operation in Yugoslavia and had also explicitly voted to fund such 

involvement. 29 Under such circumstances, it could not be said that the President 

had "nullified" legislative power or an act of Congress. There was no clear 

indication, in other words, that the two branches were at loggerheads. 

27 203 F.3d 19 (D.C. Cir.), cert. denied 531 U.S. 815 (2000). 

2B Id. at 22 ("Here the plaintiff congressmen, by specifically defeating the War Powers Resolution 

authorization hy a tie vote and hy defeating a declaration of war, sought to fit within the Coleman 

exception to the Ruines rule,II). 

29 Jd. at 20. 

11 
74 

Moreover, because the President claimed independent Article II authority as 

Commander-in-Chief and Chief Executive to send troops to Kosovo, the D.C. Circuit 

noted that such a claim distinguished the President's actions from the executive's 

actions in Coleman. When the President claims independent constitutional 

authority to do X, in other words, doing X cannot be construed as an attempt by the 

Executive to nullify an act of Congress, but instead to exercise separate and 

independent presidential powers enumerated under Article 11.30 

Essentially, the D.C. Circuit saw the Campbell legislators' claims as a dispute over the 

constitutionality of the War Powers Resolution itself (a dispute over the distribution 

of constitutional war powers), not a claim about presidential "nullification" of 

legislative power (a dispute over executive disregard of a proper legislative act).31 

A second post-Raines institutional injury case from the D.C. Circuit is Chenoweth v. 

Clinton, a lawsuit filed by four members of the House against President Clinton.32 

The plaintiff-legislators soughtto enjoin the President's implementation ofthe 

American Heritage Rivers Initiative (AHRI), which they claimed exceeded 

presidential authority. 

After President Clinton created the AHRI, the plaintiffs introduced a bill to terminate 

the initiative but the bill went nowhere. D Failing in their legislative efforts to stop 

the President's initiative, the legislators filed their lawsuit, claiming it violated 

several constitutional and statutory provisions.]~ Specifically, the plaintiffs asserted 

that the AHRI "usurp[ ed] Congressional authority by implementing a program, for 

which [the President has no constitutional authority, in a manner contrary to the 

Constitution."35 

The Chenoweth court concluded that after Raines, the plaintiffs' allegations of 

institutional injury were insufficient for standing.36 Specifically, the D.C. Circuit 

30 Accord Kucinich v. Obama, 821 F. Supp.2d 110, 120 (D.D.C. 2011) ("The President's actions, being 

based on authority totally independent of [Congress's vote], cannot be construed as actions that 

nullify a specific Congressional prohibition."). 

:;, Cumpbell, 203 F.3d at 22 ("As tbe government correctly observes, appellants' statutory argument, 

although cast in terms of the nullification of a recent vote, essentially is that the President violated 

the quarter-century old War Powers Resolution. Similar, their constitutional argument is that the 

President has acted illegally-in excess of his authority-because he waged war in the constitutional 

sense without a congressional delegation. Neither claim is analogous to a Coleman nullification). 

:;z 181 F.3d 112 (D.C. Cir. 1999), cert. denied 529 U.S. 1012 (2000). 

33 [d. at 113. 

34 Jd. 

35 Jd. at 116. 

:16 [d. (Applying Moore, this court presumably would have found that injury sufficient to satisfy the 

standing requirement; after Ruines, however, we cannot."). 

12 
75 

noted that the four plaintiff-legislators "did not allege that the necessary majorities 

in Congress voted to block the AHRI. Unlike the plaintiffs in ... Coleman, therefore, 

they cannot claim their votes were effectively nullified by the machinations of the 

Executive.":07 As with Campbell, the plaintiff-legislators in Chenoweth failed to 

convince the D,C. Circuit that Congress and the President were genuinely at 

loggerheads. There was no concrete evidence, in either case, that their colleagues in 

Congress agreed with the plaintiff-legislators' position. 

Both Campbell and Chenoweth thus stand for the proposition that when legislators 

allege institutional injury, the existence of facts indicating that a majority of their 

colleagues in Congress do not agree with their position will result in a finding that the 

plaintiff-legislators have not established a sufficiently concrete "institutional" injury. 

In Campbell, for example, a majority of the plaintiff-legislators' colleagues had voted 

to fund U.S. military involvement in Kosovo and against a resolution directing the 

President to end such involvement-both of which indicated that the dispute was 

intra-legislative, as it was in Raines.38 Likewise, in Chenoweth, Congress had taken 

no action to oppose the President's creation ofthe AHRI for two years, including no 

action on the plaintiff-legislators' bill to terminate the initiative-suggesting that 

Congress as an institution did not feel the same way as the plaintiff-legislators.39 In 

neither case was there any indication that the majority of congressional colleagues 

supported the plaintiffs' position. Without such direct evidence of institutional 

support for the plaintiff-legislators' position, it is impossible for such legislators to 

carry their burden of proving "institutional" injury. 

It should be noted, however, that concrete evidence of institutional injury does not 

require a formal legislative authorization for the plaintiff-legislators' lawsuit. The 

Supreme Court's decision in Coleman v. Miller makes this clear. While there was no 

formal authorization by the Kansas State Senate for the institutional injury lawsuit 

in Coleman, the named plaintiffs in the case included a majority (21 of 40) Kansas 

State Senators.40 As will become apparent in the following discussion on the D.C. 

Circuit's subpoena cases and on the relevant prudential factors, an explicit 

institutional authorization for an institutional injury lawsuit-while not 

necessary-is nonetheless a significant "plus factor" toward establishing standing in 

such a case. 

One additional fact of note in both Campbell and Chenoweth is that neither case 

involved any of the three prudential factors discussed in section III below. Neither 

371d. The Chenoweth court also placed great emphasis on the availahility oflegislative self-help, a 

prudential factor I will discuss in the next section. [d. ("It is uncontested that the Congress could 

terminate the AHRI were a sufficient number in each House so inclined."). 

:lK Cumpbell, 203 F.3d at 20. 

39 Chenoweth, 181 F.3d at 113. 

40 Coleman, 307 U.S. at 436. 

13 
76 

case involved (1) an explicit institutional authorization for the lawsuit; (2) a lack of 

a private plaintiffto challenge the executive's action;41 or (3) a lack of available 

political self-help.42 A lawsuit in which one or more ofthese factors is present 

would thus be distinguishable. 

b. Subpoena cases 

Prior to Raines, the D.C. Circuit had ruled, in United States v. American Telephone and 

Telegraph Co. (AT&T), that the House of Representatives as a whole had standing to 

enforce congressional subpoenas against the executive branch.43 After Raines was 

decided in 1997, however, there was some question as to whether AT&T was still 

good law. In 2008, the federal district court in D.C. rendered an opinion in 

Committee on the Judiciary, U.S. House oJRepresentatives v. Miers,11 concluding that 

"Raines did not overrule or otherwise undermine AT&T I .... " A similar conclusion 

was reached in late 2013 by the D.C. district court in Committee on Oversight and 

Government ReJorm, U.S. House oj Representatives v. Holder.45 

Before turning to the district court opinions in Miers and Holder, it is useful to 

examine AT&T. The AT&T litigation began with an investigation by the 0&1 

Subcommittee of the House Committee on Interstate and Foreign Commerce into 

the nature and extent of domestic warrantless wiretaps conducted for national 

security purposes. As part of its investigation, the Subcommittee issued a subpoena 

to AT &T, asking it to turn over all warrantless wiretap requests received by the 

FBl.46 

After the subpoena was issued, the White House began negotiations with the 

Subcommittee regarding the extent and format of disclosure of the FBI's requests to 

41 A private plaintiff would have been available to challenge President Clinton's commitment of U.S. 

troops to Kosovo without congressional authorization. Affected members of the U.S. militalY of their 

families would have standing to sue. See Doe v. Bush, 323 F..3d 133 (1st Cir.), reh'g denied 322 F..3d 

109 (1st Cir. 2003). Similarly, a private property owner injured by the AHRI in some way could have 

challenged a waterway's designation under the initiative, though a Westlaw search did not uncover 

any private lawsuits. 

42 Indeed, the D.C. Circuit noted in both Campbell and Chenoweth that if Congress were unhappy with 

the President's actions, it had political remedies readily available. See Campbell, 203 F..3d at 23-24; 

Culeman, 181 F..3d at 116. 

43 551 F.2d 384 (D.C. Cir. 1976). 

44558 F. Supp.2d 53 (D.D.C. 2008). Tbe D.C. district court's opinion was tbe last word on the merits 

of the issues raised by Miers. The D.C. Circuit granted a motion to stay district judge Bates' order 

pending appeal. Committee on the Judiciary of the U.S. House of Representatives v. Miers, 542 F.3d. 

909 (D.C. Cir. 2008). After the elections of2008, tbe D.C. Circuit granted Miers' and Bolten's motion 

to voluntarily dismiss their appeals. 2009 WL 3568649 (D.C. Cir., Oct. 14, 2009). 

45 ___ F.. Supp.2d __ ~ 2013 WL 5428834 (D.D.C. Sept. 30, 2013). 

46 AT&T, 551 F..2d at 385. 

14 
77 

AT&T. When negotiations between the White House and Subcommittee broke 

down, President Ford instructed AT&T "as an agent ofthe United States" to decline 

compliance with the subpoena.47 When AT&T indicated that it felt compelled to 

comply with the subpoena, the U.S. sought and received a temporary restraining 

order against AT&T.~8 The Subcommittee's Chairman intervened, and the district 

court "correctly treated the case as a clash ofthe powers ofthe legislative and 

executive branches ofthe United States, with AT&T in the role of a stakeholder."~Y 

The trial court then balanced the needs of the Subcommittee and Executive, 

concluding that national security interests outweighed a need for strict compliance 

with the subpoena. 50 A permanent injunction was entered, ordering AT&T to 

ignore the subpoena. 51 

The D.C. Circuit concluded that the Subcommittee Chairman had standing to 

represent the interests of the House. Specifically, the D.C. Circuit noted that the 

House had passed a resolution, H. Res. 1420, which authorized the Subcommittee 

Chairman to intervene in the lawsuit on behalf of the House and provided funds for 

counsel.52 Because a formal institutional authorization for the lawsuit existed, the 

D.C. Circuit concluded, "[W]e need not consider the standing of a single member of 

Congress to advocate his own interest in the congressional subpoena power. It is 

clear that the House as a whole has standing to assert its investigatory power, and 

can designate a member to act on its behalf."53 The court then remanded the case 

and requested the Subcommittee and White House to attempt to negotiate a 

settlement.54 

AT&T is consistent with Raines for one simple reason: When Congress issues a 

subpoena and the executive refuses to comply with that subpoena, the executive is 

"nullifying" a legislative act-the subpoena itself. When Congress, pursuant to its 

legitimate investigatory power, declares to the executive, "Thou shalt produce 

documents and/or testimony relating to X," an executive decision to ignore the 

subpoena is an act that declares, "not X." In such a situation, the legislative and 

executive branches are undeniably at loggerheads because the executive act has the 

effect of nullifying a legislative act. The nullification of the legislative act provides 

the "institutional" injury sufficient for a concrete case or controversy. When 

Congress takes the step of explicitly authorizing an institutional lawsuit to enforce 

47 Id. at 387. 

4" Jd. 

49 Jd. at 389. 

50 Jd. at 388. 

S1Id. 

S'Id. at 391. 

53 Jd. linternal citation omitted). 

S4Id. at 395. 

15 
78 

its subpoena-as it did in AT&T -there is little doubt that the institution qua 

institution has been harmed by the executive's act. The explicit authorization of the 

lawsuit satisfies the "institutional check"; the executive's nullification of the 

subpoena satisfies the "injury check." 

Two post-AT&T decisions by the federal district court in D.C. confirm that AT&T has 

continuing viability post-Raines: (1) Committee on the judiciary, U.S. House of 

Representatives v. Miers;55 and (2) Committee on Oversight and Government Reform, 

U.S. House of Representatives v. Holder.56 

In Miers, the House judiciary Committee issued subpoenas to a former White House 

counsel, Harriet Miers, and current White House Chief of Staff, joshua Bolten, to 

provide documents and testimony relating to the Committee's investigation into the 

reasons motivating the forced resignations of nine U.S. attorneysP When Miers and 

Bolten claimed executive privilege and the Department of Justice made it clear that 

it would not initiate criminal contempt proceedings, the House then passed H. Res. 

980, authorizing then-Chairman Conyers to file a civil action in federal court seeking 

compliance with the subpoenas.58 

judge john Bates' opinion in Miers declared that the D.C. Circuit's opinion in AT&T 

survived the Supreme Court's decision in Raines59and that Raines demanded that 

institutional injury suits be unequivocally "institutional" in nature to satisfy injuryin-fact: "Members [in Raines] had suffered no injury that granted them individual 

standing because the actual injury was incurred by the institution. Significantly, the 

Supreme Court noted that it 'attached some importance to the fact that [plaintiffs] 

have not been authorized to represent their respective Houses of Congress in this 

action, and indeed both Houses actively oppose their suits."6o 

judge Bates then distinguished Miers and AT&T from Raines by observing that in the 

subpoena cases, the Chairmen ofthe respective committees were "authorized to act 

on behalf ofthe House to vindicate the House's institutional right that had been 

challenged by the executive branch. The chairman, then, represented the institution 

and sought to remedy a potential institutional injury. That was not the case in 

Raines. There individual Members sought to ameliorate Congress's institutional 

injury without the consent of the institution itself-and the approach was rejected 

by the Supreme Court. But the Supreme Court has never held that an institution 

55558 F. Supp.2d 53 (D.D.C. 2008). 

56 ___ F. Supp.2d __ ~ 2013 WL 5428834 (D.D.C. Sept. 30, 2013). 

57 Miers, 558 F. Supp.2d at 55 . 

.oK [d. at 63. 

59 Jd. at 69 ["Raines did not overrule or otherwise undermine AT&T J . ... "). 

60 [d. (quoting Ruines) (emphasis in original). 

16 
79 

such as the House of Representatives cannot file suit to address an institutional 

harm.61 

To judge Bates, in other words, the institutional injury asserted in Raines was too 

abstract because there was no evidence that the institution thought it had been 

injured by the Line Item Veto Act. Moreover, because noncompliance with a 

subpoena was a direct nullification of Congress's legitimate investigatory request, 

the Miers injury was not an abstract, future injury like it was in Raines.62 The 

executive's noncompliance with a congressional subpoena nullified both Congress's 

power to investigate and its power to enforce its power to investigate.63 

Judge Bates then concluded, "[T]he fact that the House has issued a subpoena and 

explicitly authorized this suit does more than simply remove any doubt that [the 

House] considers itself aggrieved. It is the key factor that moves this case from the 

impermissible category of an individual plaintiff asserting an institutional injury to 

the permissible category of an institutional plaintiff asserting an institutional 

injury."64 

The Holder decision by district court judge Amy Berman jackson is essentially the 

same as that of judge Bates in Miers. In Holder, the House Committee on Oversight 

and Government Reform issued a subpoena to Attorney General Eric Holder, 

seeking information relating to its investigation into the so-called "Fast and Furious" 

gun-walking operation by the Bureau of Alcohol, Tobacco and Firearms.6s Holder 

refused fully to comply with the subpoena, citing executive priviJege. 66 

The House of Representatives then passed H. Res. 706, explicitly authorizing the 

Chairman of the Oversight and Government Operations Committee to initiate a civil 

lawsuit to enforce the Holder subpoena.67 judge jackson noted that since Marbury v. 

Madison, the courts have undertaken the duty to adjudicate disputes about the 

proper boundaries of power between the political branches.68 She rejected the 

6lld. at 70 (emphasis in original). 

621d. (In Raines . .. the harm was not tied to a specific instance of diffused voting power; rather, the 

injury was conceived of only in abstract, future terms."). 

631d. at 71 ("The injury incurred by the Committee, for Article III purposes, is both the loss of 

information to which it is entitled and the institutional diminution of its subpoena poweL"). 

641d. at 71 (internal citations and quotation marks omitted). 

"' Holder, ___ F. Supp.2d ____ , 2013 WL 5428834, at *1 (D.D.C. Sept. 30, 2013). 

G61d. at *4. 

07 Plaintiff's Complaint, 1[53, available at 2012 WL 3264300 (D.D.C. Aug. 13,2012) (trial pleading). 

6e Holder, 2013 WL 5428834 at *8 (noting that in United States v. Nixon, "the Court reviewed the 

history of its own jurisprudence, beginning with Marbury v. Madison, and it pointed out tbat it had 

repeatedly been called upon to decide whether the executive branch or the legislature had exercised 

its power in conflict with the Constitution .... And it repeated what it had set forth in Baker v. Carr: 

'[D]eciding whether a matter has in any measure been committed b the Constitution to another 

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80 

Executive's position that judicial determination ofthe proper division of powers 

between the political branches would violate separation of powers,69 concluding, 

''To give the [executive 1 the final word would elevate and fortify the executive 

branch at the expense of the other institutions that are supposed to be its equal. and 

do more damage to the balance envisioned by the Framers than a judicial ruling on 

the narrow privilege question posed by the complaint."70 

Turning her attention to Raines v. Byrd, Judge Jackson concluded that the Raines 

Court had no intention of blocking legislative lawsuits against the executive, but the 

legislators simply had not proven either a concrete personal harm or a concrete 

institutional harm,71 In short, "Raines was dismissed for lack of jurisdiction because 

of the 'amorphous' nature of the claim, not because it was an inter-branch 

dispute."72 

All three ofthese subpoena cases decided by the federal courts in D.C. are 

remarkably similar. They all involve: 

(1) the issuance by a House committee of an investigatory subpoena against a 

member of the executive branch; 

(2) the non-compliance with the subpoena by the executive branch, citing some 

form of executive privilege (a state secrets/national security privilege in AT&T; the 

executive communications privilege in Miers and Holder); and 

(3) the passage of a House Resolution explicitly authorizing a lawsuit to be brought 

on behalf of the House to enforce the subpoena. 

Under these circumstances, there is little doubt that both the institutional check and 

the injury check have been satisfied. The explicit institutional authorization, 

combined with an executive act nullifying an act of Congress, establishes that there 

branch of government, or whether the action of that branch exceeds whatever authority has been 

committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this 

Court has ultimate interpreter of the Constitution.") (internal citations omitted). 

691d. at *9 ("Throughout is pleadings and during oral argument, the Department has advanced this 

constricted view of the role of the courts and maintained that it would violate the sepaTation of 

powers enshrined in the Constitution if this Court were to undertake to resolve a dispute between 

the other two branches .... But while this position was adamantly advanced, there was a notable 

absence of support for it set forth in the defendant's pleadings, and oral argument revealed that the 

executive's contention rests almost entirely on one case: Raines v. Byrd."). 

701d. at *8. 

71 Jd. at *10 l"A reading of the entire opinion [Raines] reveals that the problem that prompted the 

dismissal was not the fact that legislators were suing the executive; it was that the plaintiffs had 

suffered no concrete, personal harm, and they were simply complaining that the Act would result in 

some 'abstract dilution' of the power of Congress as a whole."). 

721d. 

18 
81 

is an active "controversy" between the branches that may be resolved by the 

judiciary under Article III, section two. 

I will now proceed to examine three important prudential factors that courts will 

consider in deciding whether it should exercise its constitutional power to 

adjudicate the controversy. If one or more of these prudential factors is lacking, the 

court may decline (but constitutionally does not have to decline) to adjudicate a 

political branch dispute it would otherwise have constitutional authority to resolve. 

III. PRUDENTIAL FACTORS IMPORTANT IN INSTITUTIONAL INJURY LAWSUITS 

The foregoing discussion indicates that legislative standing for institutional injuries 

is, in fact, possible under the right circumstances. So long as the courts are 

convinced that the legislator-plaintiffs are speaking on behalf of the institution (the 

"institutional check") and the Executive's act is tantamount to a "nullification" of 

legislative action (the "injury check"), the controversy will be sufficiently direct and 

concrete to satisfy Article III injury-in-fact requirements. 

Now, we will focus on non-Article III prudential standing considerations that both 

the Supreme Court and lower federal courts have intimated are salient to the 

decision to adjudicate a controversy involving institutional injury to the legislature. 

A. Explicit Authorization for Litigation 

As stated above, explicit institutional authorization for the lawsuit is not required, 

as evidenced by the justiciability ofthe Kansas State Senators' lawsuit in Coleman v. 

Miller. In that case, a majority (21 out of 40) of state senators had joined as 

plaintiffs in the lawsuit challenging the constitutionality of a Lt. Governor's tiebreaking vote in favor of the federal Child Labor Amendment.?3 In Coleman, 

however, the fact that a majority of the Kansas Senate was bringing the lawsuit 

ensured the Court that the institution qua institution had an active controversy 

against the executive branch-in other words, the institutional check was satisfied. 

But if a majority of one of the legislative houses does not formally join a lawsuit, 

how can the court be satisfied that the controversy with the executive does, indeed, 

constitute a dispute with the legislature qua legislature? The case law-particularly 

the subpoena cases ofthe federal courts in the D.C. Circuit-suggests that, in the 

absence of formal joinder of a majority oflegislators as plaintiffs, a formal 

institutional authorization for the lawsuit will suffice to provide this institutional 

check. 

73 Coleman, 307 U.S. at 436l"The original proceeding in mandamus was then brought in the Supreme 

Court of Kansas by twenty-one members of tbe Senate, including tbe twenty senators wbo bad voted 

against the resolution, and three members of the house of representatives .... "). 

19 
82 

Formal institutional authorization for an institutional injury lawsuit ensures that 

the judiciary is not being asked to adjudicate a "sore loser" lawsuit wherein a few 

disgruntled lawmakers attempt to reach a result through litigation that they could 

not reach with their own colleagues in the political branch. In the words ofthe 

Supreme Court in Raines, "We attach some importance to the fact that appellees 

have not been authorized to represent their respective Houses of Congress in this 

action, and indeed both Houses actively oppose their suit."71 

Indeed, in all three of the D.C. subpoena cases-AT&T, Miers and Holderinstitutional authorization for the lawsuit existed, and the courts sustained 

institutional standing to sue. Conversely, in the D.C. Circuit cases disallowing 

congressional standing-Campbell and Chenoweth-such institutional authorization 

was lacking. 

Another D.C. federal district court opinion is useful here as well, Kucinich v. Bush.7s 

In Kucinich, an ad hoc group of thirty-two House members sought a declaration that 

President Bush's unilateral withdrawal from the Anti-Ballistic Missile (ABM) Treaty 

was unconstitutional. Judge Bates (the same judge as in Miers) denied these 

legislators' standing to assert institutional injury, concluding that they had not 

convinced him that their colleagues in Congress agreed with their position, and 

were functionally indistinguishable from the "sore loser" legislator-plaintiffs in 

Raines.76 

Judge Bates' conclusion that the plaintiffs could not satisfy injury-in-fact was 

reinforced by the fact that the lawsuit had not been authorized by the House: 

"Equally important, the thirty-two congressmen here have not been authorized, 

implicitly or explicitly, to bring this lawsuit on behalf of the House, a committee of 

the House, or Congress as a whole."77 He then observed, 

It is entirely logical, from an institutional standpoint, that a group of 

congressmen bringing suit in court, purportedly to protect Congress's 

interests, must first have the authority to represent the interests of Congress, 

the House of Representatives, or the Senate. Permitting individual 

congressmen to run to federal court any time they are on the losing end of 

some vote or issue would circumvent and undermine the legislative process, 

and risk substituting judicial considerations and assessments for legislative 

ones.78 

74 Ruines, 521 U.S. at 829. 

75 236 F. Supp.2d 1 CD.D.C. 2002). 

" Id. at 6· 7. 

77 Jd. at 11. 

7BId. at1l. 

20 
83 

A similar emphasis on institutional authorization was made by D.C. federal district 

judge Reggie Walton in Kucinich v. Obama ("Kucinich 1I").79 In Kucinich 1I, an ad hoc 

group often House members challenged the constitutionality of President Obama's 

commitment of U.S. troops to Libya, in violation of the War Powers Clause and the 

War Powers Act (the same legal claims raised in Campbell v. Clinton,RO discussed 

above in the subsection on non-subpoena D.C. Circuit cases). 

Judge Walton ruled that the congressmen lacked standing to assert their 

institutional injury, emphasizing the importance of a lack of institutional 

authorization to bring such claims: "Furthermore, the Supreme Court's decision in 

Raines was premised in part on the fact that the legislators in that case did not 

initiate their lawsuit on behalf of their respective legislator bodies .... Here, there 

has been no indication from the plaintiffs that they have initiated this litigation at 

the behest of the House of Representatives as a whole-to the contrary, they speak 

for themselves, not the House of Congress in which they serve."Hl In short, just like 

in other ad hoc legislator lawsuits that lack institutional authorization, Judge Walton 

viewed Kucinich 1I as a "sore loser" lawsuit, not a genuinely institutional one. 

The bottom line appears to be that, in the absence of formal joinder by a majority of 

legislators of a particular chamber (as was the case in Coleman), courts will insist on 

a formal institutional authorization for the lawsuit. When such formal institutional 

authorization exists, the genuineness ofthe institutional injury is notin doubt, and 

the case presents an undeniable "controversy" between the legislative and executive 

branches, provided the executive has taken some act that "nullifies" an act of 

Congress (injury-in-fact). 

B. No Private Plaintiff is Available 

Another important consideration lurking in the legislator standing cases is whether 

there are any private, non-legislator plaintiffs available who can sue the Executive to 

enforce the constitutional limits on his power. In Raines, for example the Supreme 

Court was well aware that other private individuals, who had been personally 

injured by the exercise of a line item veto, would be available to sue the President. 

Indeed, in a case decided the year after Raines, Clinton v. City of New York, standing 

to sue the President was established by several businesses, individuals, and a city 

that had lost tax benefits due to the line item veto, and the Court then declared the 

line item veto unconstitutional on the merits.82 

This prudential factor is important because if there is a private plaintiff available to 

sue the Executive, the courts can avoid adjudicating a dispute among the political 

79 821 F. Supp.2d 110 (D.D.C. 2011). 

HII203 F.3d 19 (2000). 

01 Kucinich ll, 821 F. Supp.2d at 118. 

82 524 U.S. 417 (1998). 

21 
84 

branches, and instead simply resolve the underlying issue in a more traditional, 

private citizen vs. government lawsuit. Such lawsuits inherently have a less 

aggressive appearance, so courts are more comfortable adjudicating them. 

Indeed, this understanding is the key to deciphering the Raines Court's reference to 

"historical practice," in which the Court referenced "several episodes in our history 

that in analogous confrontations between one or both Houses of Congress and the 

Executive Branch, no suit was brought on the basis of claimed injury to official 

authority or power."83 Specifically, the Raines Court mentioned four historical 

situations involving a dispute over the proper constitutional boundary between the 

legislative and executive branches: (1) the Tenure of Office Act of 1867, which 

required the President to obtain Senate concurrence before firing any cabinet 

officers; (2) the one-house legislative veto provision contained in the Immigration 

and Nationality Act; (3) the appointment provisions ofthe Federal Election 

Campaign Act, which allowed the President, House and Senate to appoint FEC 

members with majority confirmation of both Houses of Congress; and (4) the 

validity of President Coolidge's pocket veto of a law giving certain Native American 

tribes a right to sue the U.S. for damages for the loss oftheir tribal lands. 

The common denominator in all four of these legislative-executive power disputes is 

tbis: The disputes could be litigated (and in fact, were litigated) by a private 

plaintiff, without needing to resort to a legislator, institutional injury lawsuit. 

The power of President Andrew Johnson to ignore the Tenure of Office Act by firing 

his Secretary of War, Edwin Stanton, without Senate concurrence could easily have 

been litigated by the affected individual (Stanton) or any other executive officer so 

fired. The Raines Court took pains to note that if President Johnson were allowed to 

"challenge the Tenure of Office Act before he ever thought about firing a cabinet 

member, simply on the grounds that [the law] altered the calculus by which he 

would nominate someone to his cabinet ... [such a lawsuit] would have [] 

improperly and unnecessarily plunged [the court] into the bitter political battle 

being waged between the President and Congress." 

This statement from Raines does not mean that legislator lawsuits are inappropriate 

under Article III; quite the contrary. It simply means that adjudicating a "President 

Johnson v. Congress" lawsuit would inappropriately have interjected the courts into 

a raw political dispute that was best resolved by a private plaintiff. The Raines Court 

made this clear in its subsequent analysis, which noted that, in 1926, a private 

plaintiff-postmaster, aggrieved by a mini-Tenure in Office Act that covered the U.S. 

Post Office, sued the Executive after he was fired without the required Senate 

approval.84 That lawsuit, Myers v. United States,8S ruled in favor of the fired 

postmaster and "expressed the view that the original Tenure of Office Act was 

H{ Ruine" 521 U.S. at 826. 

04 Jd. at 827. 

85 272 U.S. 52 (1926). 

22 
85 

unconstitutional."B6 The Raines Court then quoted from Myers, ''This Court has, 

since the Tenure of Office Act, manifested an earnest desire to avoid a final 

settlement of the question until it should be inevitably presented, as it is here."87 

This statement indicates that when a private plaintiff is available, legislator lawsuits 

should not be entertained, and the court should simply wait until the private 

plaintiff lawsuit is filed to resolve the constitutional question. 

The same theme is evident in the three other cases cited by the Raines Court. 

Specifically, the Court said that a lawsuit filed by the Executive to challenge the 

constitutionality of the one-House veto of the Immigration and Nationality Act 

would have been inappropriate. It then cited lNS v. Chadha,B8 in which a foreign 

exchange student named Chadha had been ordered deported after the House of 

Representatives vetoed the INS decision to allow Chadha to remain. Clearly, any 

exercise by the House of its unicameral power to veto an INS non-deportation 

decision would concretely injure the individual affected, and private plaintiffs such 

as Chadha were readily available. 

Similarly, the Raines Court stated that a lawsuit by President Ford challenging the 

constitutionality of the FEC appointment provisions ofthe Federal Election 

Campaign Act would have been inappropriate, citing Buckley v. Valeo. 89 In Buckley, 

several federal candidates and contributors directly affected by the FECA challenged 

the constitutionality of several of the acts provisions, including the manner in which 

FEC members were appointed. It would have been overly aggressive for the federal 

judiciary to allow President Ford to challenge these provisions ofthe FECA, when it 

was apparent that there would be many concretely injured private plaintiffs suitable 

to bring such a constitutional challenge. 

The final example cited by the Raines Court involved the constitutionality of 

President Coolidge's pocket veto of a law granting certain Native American tribes 

the right to sue the U.S. for damages sustained by loss oftheir tribal lands. When 

President Coolidge failed to sign the law before Congress adjourned for the summer, 

the law was deemed vetoed pursuant to the pocket veto language of Article I, section 

seven.YO Under these circumstances, it was apparent that the Native American 

tribes were concretely injured by the pocket veto, and would have standing to sue. 

86 Ruine" 521 U.S. at 827. 

H7 [d. at 828 (quoting Myers, 272 U.S. at 173). 

De 462 U.S. 919 (1983). 

HY 424 U.S. 1 (1976) (per curiam). 

90 "If any Bill shall not be returned by the President within ten days (Sundays excepted) after it shall 

have been presented to him, the same shall be a Law, in like manner as ifhe had signed it, unless the 

Congress by their Adjournment prevent its return, in which case it shall not be a Law." U.s. CON ST. 

art. I, § 7. 

23 
86 

Native American tribes initiated such a lawsuit, The Pocket Veto Case,91 and the 

Supreme Court determined that Coolidge's pocket veto was constitutional. 

By citing these four constitutional crises, the Raines Court made it clear that 

legislator or executive standing should not be allowed whenever a private plaintiff 

would be available to adjudicate the constitutional issues. 

But what if there are no other private plaintiffs with standing to challenge the 

President? This would be the case, for example, in the cases seeking enforcement of 

a congressional subpoena issued against the Executive. It would also be the case in 

situations that David Rivkin and I have called "benevolent suspensions" of law by 

tbe President. 92 

In the benevolent suspension scenario, the President exempts certain classes of 

individuals from the operation oflaw, effectively granting an executive "privilege" to 

the exempted individuals. For example, when the President instructed the 

Department of Homeland Security to stop deporting certain classes of young, illegal 

immigrants-the so-called Deferred Action for Childhood Arrivals (DACA)93-whom 

did the President "harm" in any concrete, particularized way? No one. Similarly, 

when the President unilaterally delayed provisions of the Affordable Care Act-such 

as the employer mandate 94-he nullifies those provisions ofthe law declaring an 

effective date of January 1, 2014.90 But whom did he harm, in an individualized 

way? Again, no one. 

Such benevolent suspensions of law, by their very nature, are particularly 

pernicious from a constitutional, separation of powers perspective because by 

benevolently granting privileges that "help" a class of persons, exempting them from 

the operation of law, the President's acts cannot give rise to a private plaintiff 

lawsuit. 96 

91 279 U.S, 655 (1929), 

92 David Rivkin and Elizaheth Price Foley, Can Dbama 's Legal End-Run Around Congress Be Stopped?, 

POLITICO, Jan, 15,2014. available at htl;p:(/www.polilim.com/maguzine/stor.l/21J14101Iharac/.-

o!Jomu-co!l.<;'iitlltiufl-hmu!-end-rufl-around-curwn.>s.\-]0223J.htmi. 

Y{ See Deferred Action for Childhood Arrivals, U,S, Dep't of Homeland Security, 

hugs: Ilwww.dhs.~lOV Ideferred-action- childhood-~-!rrivals (listing criteria for indefinite suspension of 

deportation and obtaining of a work permit), 

Y4 See Fact Sheet, U,S, Dep't of the TreasUlY, Final Regulations implementing Employer Shared 

Responsibility Under the Affordable Care Act (ACA) for 201S, available at 

/JJ;tp;iLwwl'v, trrJ1'iJJI.!"!J[J1!;'llli'f,fJ,Cfl[ltITiarf!;;1i:mka~esLI1!KI!ll)gl1ts/F'I[t;%;WSI]li~I'1~2J2f}21JLL4,wi[ 

YO Patient Protection and Affordahle Care Act § 1513(d) l"(d) Effective Date- The amendments made 

by this section shall apply to months beginning after December 31,2013,"). 

96 Contrast those situations in which the President has arguahly ignored the plain language of the 

Affordable Care Act which tax credits to purchase health insurance available to individuals living in 

States that operate a state-run health insurance exchange, 26 USc. § 368(b)(2)(A) (extending tax 

credits to taxpayers "which were enrolled in through an Exchange established by the State under 

24 
87 

If the constitutionality of a President's benevolent suspension is going to be 

adjudicated on the merits, the lawsuit must be initiated by Congress. Such a lawsuit, 

moreover, will by definition involve an allegation of institutional injury. Provided 

the legislator-plaintiffs in such a case can convince the court that the institution has 

suffered an injury-in-fact-Le., that the benevolent suspension is tantamount to a 

"nullification" of a law they have written (e.g., the portion of the Immigration and 

Nationality Act that proclaims that individuals who have entered the country 

illegally "shall" be deportable, 97 or the provision of the Affordable Care Act that 

proclaims they "shall" be effective beginning in 201498)-the lack of a private 

plaintiff should strongly counsel the court to allow standing. 

If no private plaintiff is available, adjudicating the case would not be a situation in 

which the judiciary is unnecessarily embroiling itself in a political dispute. It is, 

instead, inherently a situation wherein if the court does not adjudicate, the issue will 

go unadjudicated entirely. 

It would be rather ironic if, in the name of "separation of powers," courts declined to 

hear institutional injury lawsuits brought by the legislature when there is no other 

private plaintiff available to adjudicate serious separation of powers issues. If 

separation of powers is to be maintained long-term, it must allow the courts to 

adjudicate institutional injury lawsuits as a last resort. 

C. No Legislative "Self-Help" is Available 

A final factor of salience to the prudential standing calculus is the availability of 

political "self-help" remedies. This is concededly the most amorphous of the three 

prudential factors, as it is unclear from existing case law to what extent political selfhelp must be available in order to counsel against adjudication. For example, is the 

mere possibility of impeachment by the legislature sufficient to thwart legislator 

standing? Presumably not, as the legislator-plaintiffs in Coleman v. Miller could have 

impeached the Lieutenant Governor or Governor under the Kansas Constitution,99 

1311."). In this situation, the Executive's decision to extend the tax credits to individuals living States 

without state-run exchanges, 76 Fed. Reg. 50,931 [Aug. 17,2011), has caused concrete harm to 

employers in those states, who are required to pay penalties whenever their employees receive such 

credits. As such, this is not a "benevolent suspension" scenario at all, but one in which private 

plaintiffs are readily available to challenge the constitutionality of the President's action. As such, 

there is no need to resort to legislator-lawsuits. Such private plaintiff lawsuits have, indeed, been 

filed and are pending in the federal courts. See, e.g., Halbig v. Sehelius, ___ F. Supp.2d ___ , 2014 

WL 129023 (D.D.C. Jan. 15, 2014). 

"7 B U.s.c. §1227[a). 

9B Patient Protection and Affordable Care Act § 1513(d) ("(d) Effective Date- The amendments made 

hy this section shall apply to months beginning after December 31,2013."). 

99 KANSAS CONST. art. II, § 28 (allowing for impeachment of the Governor "and all other officers under 

this Constitution")' This provision of the Kansas Constitulion is part of the so-called \Vyandotte 

25 
88 

yet impeachment certainly would not "undo" the state's ratification of the Child 

Labor Amendment, but merely punish the allegedly offending executive branch 

actors with a loss of office. 

The availability of political self-help was not actually discussed by the Supreme 

Court in Coleman itself, but instead appeared initially in Raines v. Byrd. There, the 

Supreme Court denied legislator standing and, toward the end ofthe opinion, briefly 

opined, "We also note that our conclusion neither deprives Members of Congress of 

an adequate remedy (since they may repeal the Act or exempt appropriations bills 

from its reach) .... "100 The Court then acknowledged that whether the case would 

have come out any differently had such self-help not been available, they did not 

need to decide. lol 

Given the paucity of Supreme Court guidance on the importance or meaning of "selfhelp," I will proceed to examine the D.C. federal court cases mentioned thus far, to 

see ifthey provide additional clues about this prudential factor. 

In Campbell, a majority ofthe D.C. Circuit panel believed that the 31 congressmen 

challenging the President's sending of troops to Kosovo could have sought political 

self-help such as cutting off funding for the troops or impeachment ofthe 

Presidentl02 and thus believed Raines foreclosed standing to them.103 They seem to 

have adopted a mandatory view of this prudential factor, thus giving it conclusive 

force, even though Raines itself did not do SO.104 

Specifically, the Campbell majority believed that any legislative remedy-even 

impeachment-would foreclose legislator standing. This is an odd conclusion, since 

again, the Kansas legislator-plaintiffs in Coleman could have theoretically impeached 

the offending Lieutenant Governor. Yet the Campbell majority described Coleman as 

Constitution, which was ratified in 1 g59, !lliJ1i;!'0i'~~~;Kg!kil!lliJl2'lllil!killllilo:£ilm1illill2n&lli~, and 

in existence \vhen Coleman v'. ;.Hifler 'ivas 

100 Raines, 521 U.S. at 829. 

1111 ld. at 829-30 ["Whether the case would he different if any of these circumstances were different 

we need not now decide."). 

11" Campbell, 203 F.3d at 23 ["Congress always retains appropriations authority and could have cut 

off funds for the American role in the conflict Again, there was an effort to do so but it failed; 

appropriations were authorized. And there always remains the possibility of impeachment should a 

President act in disregard of Congress' authority on these matters. "). 

1031d. ("Congress has a hroad range of legislative authority it can use to stop a President's warmaking and therefore under Raines congressmen may not challenge the President's war-making 

powers in federal court") (citing John C. Yoo, The Continuation of Politics by Other Means: The 

Original Understanding of War Powers, 84 CAl.. L. REV. 167(1996)). It should he noted thatjudge 

Randolph took another, narrower view of the availability of self-help. ld. at 32 [Randolph, j., 

concurring in the judgment). 

1114 Ruines, 521 U.S. at 829-30 ["Whether this case would be different if any of these circumstances 

were different we need not now decide."). 

26 
89 

"an unusual situation" because it was "not at all clear whether once the amendment 

was 'deemed ratified,' the Kansas Senate could have done anything to reverse that 

position."los The majority further asserted, "The Coleman senators ... may well 

have been powerless to rescind a ratification of a constitutional amendment that 

they claimed had been defeated. In other words, they had no legislative remedy."lo6 

The Campbell majority never mentions the possibility of impeachment of the 

offending Lieutenant Governor in Coleman, even though such impeachment was, in 

fact, available. Yet they assert-in the next breath-that the legislator-plaintiffs in 

Campbell could have remedied their dispute with the President over the use of U.S. 

military troops in Kosovo by impeaching the President.lo7 

Judge Raymond Randolph concurred in Campbell but wrote separately to voice his 

disagreement with the majority's understanding ofthe salience of legislative selfhelp. Specifically, Judge Randolph believed the majority had misunderstood the role 

self-help played in Raines, improperly transforming the availability of self-help into 

a component of "nullification" (institutional injury-in-fact). Randolph believed the 

availability of self-help was merely a prudential factor to be considered only after 

the court had decided that the legislator-plaintiffs suffered a "nullification" injuryas was the approach taken by the Supreme Court in Raines itself. The availability of 

self-help was not relevant, in Randolph's view, to the ab initio determination of 

whether a nullification injury existed. In Judge Randolph's words: 

The majority has, I believe, confused the right to vote in the future with the 

nullification of a vote in the past, a distinction Raines clearly made. To say 

that your vote was not nullified because you can vote for other legislation in 

the future is like saying you did not lose yesterday'S battle because you can 

fight again tomorrow. The Supreme Court did not engage in such illogic. 

When the Court in Raines mentioned the possibility of future legislation, it 

was addressing the argument that 'the [Line Item Veto] Act will nullify the 

[Congressmen's] vote in the future .... 'This part ofthe Court's opinion, 

which the majority adopts here, is quite beside the point to our case. No one 

is claiming that their votes on future legislation will be impaired or nullified 

or rendered ineffective. lOB 

Judge Randolph appears to have the correct position on the "importance" of selfhelp. It is not supposed to be-and was not, in fact-a prerequisite to finding a 

constitutional injury-in-fact (nullification) in Raines. Indeed, the Raines Court's brief 

mention of self-help occurred only at the very end of its opinion, after it had already 

concluded that the legislator-plaintiffs challenging the Line Item Veto had failed to 

105 Campbell, 203 F.3d at 22-23. 

1 lin ld. at 23. 

107 ld. 

108ld. at 32 (Randolph, r., concurring in the judgment). 

27 
90 

establish an institutional injury-in-fact (nullification). After finding no injury-in-fact, 

the Raines Court, in a separate section (section IV), then briefly mentioned several 

prudential factors that it believed bolstered its decision not to adjudicate the 

lawsuit. The prudential factors briefly mentioned in Raines are the same three 

prudential factors I have discussed in this statement: (1) a lack of institutional 

authorization for the lawsuit; (2) a lack of an available private plaintiff; and (3) the 

availability of political self-help.IOY 

The D.C. Circuit's decision in Chenoweth seems better reasoned, placing its emphasis 

on institutional injury-in-fact (nullification) rather than the availability of political 

self-help. In Chenoweth, you may recall, four House members sued President 

Clinton, alleging that his unilateral creation of the American Heritage Rivers 

Initiative exceeded his Article II authority.11o The D.C. Circuit denied the legislators 

standing to pursue their institutional injury claim, finding their alleged injuriesloss of open debate and a vote on the issue ttt-was too abstract to constitute 

nullification. 112 More specifically, the Chenoweth court concluded that because the 

"Representatives [did] not allege that the necessary majorities in the Congress voted 

to block the AHRI ... they cannot claim their votes were effectively nullified by the 

machinations of the Executive."l13 

The Chenoweth court only very briefly mentioned self-help, stating, "It is 

uncontested that the Congress could terminate the AHRI were a sufficient number in 

each House so inclined. Because the parties' dispute is therefore fully susceptible to 

political resolution, we would ... dismiss the complaint to avoid meddling in the 

internal affairs of the legislative branch." 114 

109 The entirety of the Raines Court discussion of these prudential factors was as follows: 

We attach some importance to the fact that appellees have not been authorized to represent 

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

their suit. We also note that our conclusion neither deprives Members of Congress of an 

adequate remedy (since they may repeal the Act or exempt appropriations bills from its 

reach), nor forecloses the Act from constitutional challenge by someone who suffers 

judicially cognizable injury as a result of the Act. Whether the case would be different if any 

of these circumstances were different we need not now decide. 

Ruine,~ 521 U.s. at 829-30 (internal citations omitted). 

110 81 F.2d 112 [D.C. Cir. 1999). 

111 Jd. at 113 ("Their legislative efforts having failed, the appellants brought this lawsuit, claiming ... 

the President's issuance of the AHRI by executive order, without statutory authority therefor, 

'deprived [tbe plaintiffs] of tbeir constitutionally guaranteed responsibility of open debate and vote 

on issues and legislation' involving interstate commerce, federal1ands, the expenditure of federal 

monies, and the implementation of the NEPA."). 

11'Id. at 117 (the legislators' claims of injury "is indistinguishable from the claim to standing the 

Supreme Court rejected in Ruines . ... [tbey cannot] claim that tbeir vote was nullified by the 

President's action. "). 

mId. 

114 Jd. at 116. 

28 
91 

The Chenoweth court's discussion of self-help via congressional termination ofthe 

AHRI is a much narrower and more appropriate inquiry than that of Campbell. 

Indeed, if one examines Chenoweth's treatment of self-help, one will see that the 

court considered it only in the context of injury-in-fact (nullification), not as a 

separate prudential factor in the manner of the Supreme Court in Raines. 

Notably, the Chenoweth court did not mention the possibility of withholding 

appropriations or presidential impeachment, though certainly both avenues were 

theoretically available to Congress. Instead, by focusing on legislative termination 

of the AHRI, the Chenoweth court was asking itself a deceptively simple question: 

Could Congress "undo" the President's allegedly unconstitutional act by simply 

passing an ordinary statute? If the answer is yes, then it would be hard to 

characterize the President's act as "nullifying" a non-existent act of Congress. If 

Congress has not declared "X," in other words, a presidential directive declaring "not 

X" cannot be a "nullification" of X, since Congress has not addressed X and could 

simply declare X any time it wants. This was, essentially, the point raised by Judge 

Randolph's concurrence in Campbell the following year, discussed at length above. 

The D.C. federal courts' subpoena cases-AT&T, Miers and Holder-do not explicitly 

consider the self-help factor in their standing analysis. This is most likely because 

the lack of available self-help in these cases was somewhat obvious. In AT&T, for 

example, the Executive had instructed AT&T not to comply with a subpoena issued 

by the 0&1 Subcommittee of the House Commerce Committee. Under such 

circumstances, it was patent that the Executive was not going to bring criminal 

contempt charges against AT&T for noncompliance with the subpoena since the 

President had ordered AT&T not to comply. If the House was going to be able to 

enforce its subpoena against AT&T, it would need to have standing to initiate civil 

contempt proceedings in court. 

Similarly, in both Miers115 and Holder,116 the House sought civil enforcement of its 

subpoenas issued against high-ranking Executive officials, but only after the 

Department of Justice made it clear that it would not initiate criminal contempt 

proceedings. Under these circumstances-as with AT&T -the House's ability to 

115 Miers, 558 F. Supp.2d at 63-64 ("['I'] he Attorney General responded that because Ms. Miers and 

Mr. Bolten were acting pursuant to the direct orders of the President, 'the Department has 

determined that noncompliance . . . with the Judiciary Committee suhpoenas did not constitution a 

crime and therefore the Department would not hring the congressiona.l contempt statute hefore a 

grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers."). 

110 Holder, 2013 WL 5428834 at *4l"Deputy Attorney General Cole notified the Speaker that the 

Department would not bring the congressional contempt citation before a grand jury or take any 

other action to prosecute the Attorney General. ... Deputy Attorney General Cole advised Senator 

Grassley that the U.S. Attorney had asked him to 'collvey his concurrence with the position' of the 

Department that no criminal prosecution against the Attorney General would be pursued. The U.s. 

Attorney confirmed this position in a letter to the General Counsel of the House."). 

29 
92 

enforce its subpoenas was limited solely to the initiation of civil contempt 

proceedings in federal court. 

To summarize, the availability ofiegislative self-help appears to be relevant in two 

distinct ways: First, it may be relevant to the issue of injury-in-fact (nullification), in 

the Chenoweth sense that if Congress has not yet made any declaration on "X," a 

presidential action that declares "not X" cannot be a "nullification" of congressional 

legislative power because Congress is always free to simply legislate and declare 

"X," thus trumping the Executive and defending its legislative prerogative. 

Second, the availability of self-help is relevant as a prudential factor, after the court 

has decided that injury-in-fact (nullification) exists. This was the role that self-help 

appeared to play in the Supreme Court's Raines v. Byrd decision, in which the Court 

had already found a lack of injury-in-fact, then briefly mentioned several prudential 

factors-including self-help-that it thought bolstered its conclusion of no 

standing.l17 Specifically, the Raines Court noted that its conclusion denying standing 

did not "deprive Members of Congress of an adequate remedy (since they may 

repeal the Act, or exempt appropriations from its reach) .... " 110 

It is worth noting that in briefly assessing this prudential self-help factor, the Raines 

Court mentioned both legislative repeal ofthe Line Item Veto Act, as well as 

appropriations, presumably for the White House itself. And indeed, it would 

presumably have been possible for Congress to do either of these things if it had the 

political willpower to do so. When such self-help is freely available but not 

exercised, courts may hesitate to adjudicate a legislator institutional injury lawsuit, 

reasoning that courts should be loathe to help a Congress that is not willing to help 

itself. 

But could the same be said of Congress in the face of a President's benevolent 

suspension of a law passed by Congress? In Raines, Congress had passed a law-the 

Line Item Veto Act-and the President had signed it. Similarly, with a law such as 

the Immigration and Nationality Act or the Affordable Care Act, Congress has passed 

a law, and the President has signed them. But this is where the similarity ceases 

between Raines and a potential lawsuit challenging the President's benevolent 

suspension of federal immigration law or the ACA. 

As already discussed, a President who benevolently suspends a law harms Congress 

as an institution by nullifying the law as passed. In such benevolent suspension 

situations, Congress has declared "X," and the President's benevolent suspension 

declares "not X." This is the essence of nullification. 

117 Raines, 521 U.S. at 829. 

H8Jd. 

30 
93 

More importantly for present purposes, a President's benevolent suspension of law 

is not reasonably subject to legislative self-help. First, it would be unreasonable for 

a court to refuse to adjudicate a President's failure to faithfully execute on the 

rationale that Congress could "undo" the President's act by repealing the law. In the 

benevolent suspension situation, Congress simply wants the President to faithfully 

execute the law as written. In these situations, repeal of the law would not constitute 

self-help at all; it would undo the very law that Congress is seeking to enforce. One 

might argue that Congress could pass another law that expressed its displeasure 

with the President's benevolent suspension, but this would be an odd requirement, 

as the law would presumably need to declare something along the lines of, 

"Congress is re-declaring X, and this time we really, really mean it." Asking Congress 

to re-enact a law it has already enacted-hoping the President will faithfully execute 

it the second time around-is both inefficient and tilts the balance of powers 

unfairly toward the Executive, allowing the Executive to ignore Congress unless 

Congress can muster the political will to re-enact its original law. 

Second, insisting that Congress take action other than repeal-such as denial of 

appropriations or even impeachment ofthe President-is similarly unreasonable 

under the circumstances. When congressional action is nullified by a President's 

benevolent suspension, asking Congress to defund a law it simply wants to have 

faithfully executed is like asking Congress to cut off its nose to spite its face-a selfdefeating overreaction that would make faithful execution of the law harder, not 

easier. 

Similarly, denying Congress standing to challenge a President's benevolent 

suspension on the basis that Congress could just impeach the President would be a 

perverse rule of law that would effectively say, "We ( courts) cannot adjudicate the 

constitutionality of the President's suspension of law because if Congress is angry 

about its loss of legislative power, it should impeach the President." While it is true 

that Congress is always free to impeach the President and has, in fact, done so on 

grounds of a failure to faithfully execute,119 impeachment is a drastic political 

remedy that should be a very last resort, not encouraged by courts as an preferable 

alternative to a peaceful judicial determination of constitutional parameters. 

Moreover, in the context of a President's benevolent suspension of law, Congress 

and the country might otherwise be perfectly happy wit the President's 

119 See Elizabeth Price Foley, Why Nut Even Cungre,,' Cun Sue the Admini,tmtiun Over Unconstitutiunal 

Executive Actions, DAILY CALLER, Feb. 7, 2014, available at h!!J2;lLiliillycaller,£Qll1/2014fQZLQ} (whvn0l::~yell~co_ngreSS_-(all-_Sl,Je3h~~_C}dJJ}jnt~ng.JjQn-QyeX-:]Jnt;:9Ds_titlltiQl1~1~_ex~~J1tjYf?-:gJ'lifH1S (examining 

various impeachment efforts hased on failure to faithfully execute). I would like to note for the record 

that while I authored this op-ed, I did not author its title, which (misleadingly) implies that the article 

concludes that congressional standing to sue the President is not possible. I did not reach that 

conclusion at all; instead, the article explores the possibility that ifcuurts refuse to adjudicate 

benevolent suspensions and if Congress refuses to impeach, the checks and balances presupposed by 

the Framers to check a runaway President are nonexistent. 

31 
94 

performance in office. Suggesting that Congress "try impeachment first" rather than 

asking the courts to police separation of powers seems deeply inappropriate. 

Even more fundamentally, impeachment would not remedy the President's 

benevolent suspension at all; it would simply remove the President from office and 

replace him with a new one, who mayor may not continue the policy of the 

impeached President. In the situation in Coleman v. Miller, for example, the Kansas 

legislature could have impeached the Governor and/or Lieutenant Governor as a 

consequence of its anger over the Lieutenant Governor breaking the Senate's tie 

vote on the Child Labor Amendment. If the availability of impeachment counseled 

courts to deny standing, Raines should have come out the other way and the Kansas 

State senators should have been denied standing. It would have been ridiculous for 

the Supreme Court to tell the Kansas State senators, ''I'm sorry, we cannot 

adjudicate your constitutional claim about the validity of your State's ratification of 

the Child Labor Amendment because if you were angry at the Lieutenant Governor 

for breaking your tie vote, you should impeach him rather than seeking judicial 

relief." Impeaching the Lieutenant Governor of Kansas-like impeaching a 

President who benevolent suspends the law-simply would not remedy the injuryin-fact (nullification) committed by the Executive. 

IV. CONCLUSION 

Congressional standing is possible under the right circumstances. A federal trial 

court must accept the allegations ofthe plaintiffs complaint as true at the motion to 

dismiss stage. Thus, in a lawsuit alleging a failure to faithfully execute, the court will 

ask itself: Assuming the President has failed to execute the law, would such an act 

constitute an "injury in fact" sufficient to establish standing under Article III? 

In order to answer this question, the court will apply Raines v. Byrd, which demands 

that legislators asserting an institutional injury must: (1) unequivocally speak for 

the institution qua institution; (2) complain of an injury suffered equally by all 

members of the institution; and (3) establish that the injury is tantamount to a 

"nullification" of a legislative act. 

With regard to nullification, the courts have suggested that an institutional 

controversy requires evidence that Congress has effectively declared "X" while the 

executive's act has effectively declared "not X." In such a situation, there will be little 

doubt that the legislative and executive branches are at loggerheads, and the case is 

sufficiently concrete for judicial review under Article III. 

In the specific context of a lawsuit asserting a failure of faithful execution, the D.C. 

federal courts' subpoena cases are instructive. In much the same way that an 

executive's defiance of a congreSSional subpoena is accepted as nullifying both 

Congress's subpoena itself and its greater power to investigate certain matters, an 

32 
95 

act by the President that contravenes a law written by Congress nullifies not only 

Congress's law itself, but also its greater, exclusive power to legislate. 

Assuming an injury-in-fact tantamount to nullification can be established, the court 

will then turn its attention to the three prudential factors that all counsel in favor of 

adjudicating a legislator lawsuit alleging institutional injury: (1) explicit 

institutional authorization for the lawsuit; (2) the absence of available private 

plaintiffs to challenge the executive; and (3) the lack of reasonably available political 

self-help. 

If the House passed a resolution explicitly authorizing a lawsuit to challenge a 

President's benevolent suspension (thus satisfying prudential factor one), the lack 

of an available private plaintiff would be inherent because the benevolent 

suspension would not, by definition, harm any individual in a concrete manner (thus 

satisfying factor two). Finally, when one properly understands the meaning and 

role of the self-help factor, one sees that in a benevolent suspension situation, 

Congress cannot, in fact, remedy the benevolent suspension by itself. It cannot 

simply repeal the law, since it wants the President to faithfully execute that law. It 

should not be asked to re-enact the law and declare that it really means it this time. 

And it should not be asked to cut off funds for a law it wants executed or impeach a 

President whom it otherwise does not wish to impeach. Indeed, in the benevolent 

suspension scenario, the least drastic remedy-and indeed the only remedy-is for 

the courts to grant congressional standing to adjudicate the constitutional question. 

33 
96 

Mr. GOODLATTE. Thank you, Ms. Foley. We will now begin questioning under the 5-minute rule, and I will begin by recognizing 

myself. 

Professor Turley, many of the unilateral actions the Obama Administration has taken addressed controversial political issues effectively cutting the people’s elected representatives in Congress 

out of the political process for a whole host of important issues. 

What is the effect on the political process of having the executive 

branch alone make these tough decisions? Is unilateral decision 

making good for our republican system of government? 

Mr. TURLEY. Well, thank you, Mr. Chairman. The greatest danger that we have really cannot be overstated when you have the 

concentration of power in one branch. That is precisely the danger 

that the framers were seeking to avoid. People like James Madison 

viewed the branches as sort of like bodies in orbit. They were 

locked in an orbit of shared powers. 

Once you have a concentration of authority in any one branch, 

it creates instability. But what people often miss is that separation 

of powers is really not about protecting Congress, about the institutional powers. Separation of powers was designed as a protection 

of liberty. It was to prevent the concentration of power by any of 

the branches that would threaten individual citizens. 

Mr. GOODLATTE. Professor Foley, can you elaborate on what longterm institutional consequences would likely be if the current practice of benevolent suspensions of the law is not stopped? 

Ms. FOLEY. That is a really good question because I think, you 

know, if Congress cannot stop the President from these benevolent 

suspensions, I think the first thing that occurs to me is that people 

are going to become very cynical about government. They already 

are, but it is going to get worse, and particularly I think people are 

going to get very cynical about the Constitution. They are going to 

start thinking that law is politics. 

I already have students in my classes who think that, and it gets 

worse and worse every year because of situations like this. Situations like this, these benevolent suspensions, as they get more and 

more frequent and more aggressive, they are eroding our citizens’ 

respect for the rule of law. We are a country of law and not men. 

You know, the other problem I would see from your perspective 

if I were sitting on the other side is that, you know, it is going to 

render Congress superfluous, right? You have a delicate situation 

here I understand, but think about whether or not you would ever 

want to tackle any super controversial issues if this continues. 

Think about, for example, comprehensive immigration reform. Why 

would you go to the trouble of reaching a very delicate political 

compromise on an issue like that if you actually think the President is just going to, you know, simply benevolent suspend those 

portions of the law he does not like after you reach that compromise? 

So if you want to stay relevant as an institution, I would suggest 

that you not stand idly by and let the President take your power 

away. 

Mr. GOODLATTE. As Mr. Schroeder has noted, the President certainly has some discretion to set enforcement priorities in order to 

best allocate limited resources and to make a case-by-case enforce-
97 

ment decision. But does that discretion encompass the complete 

non-enforcement of multiple statutes without any argument that 

they were unconstitutional, Ms. Foley? 

Ms. FOLEY. You are talking about just discretion to not enforce 

something? Could you repeat the question because it got a little 

long there around the margins. 

Mr. GOODLATTE. Sure. I apologize. But we acknowledge, as Professor Schroeder noted, that the President has some discretion on 

case-by-case enforcement decisions. But the question is, does that 

discretion encompass complete non-enforcement of multiple statutes without any argument that they are unconstitutional? 

Ms. FOLEY. Of course it does not. You know, there is a difference 

between enforcement discretion and non-enforcement of law with 

regard to an entire category of people. Enforcement discretion, for 

example, is when a prosecutor with limited resources says, you 

know what, I have got all these cases lined up, and I think I have 

got the best evidence to spend my limited resources prosecuting 

this one first, this 1 second, this one third. 

Prosecutorial discretion is not saying, well, I know I have this 

law and I know it says it shall do this and it shall do that. But 

I am just going to say it does not do that with regard to an entire 

category of people. That is an apple and an orange. This is not a 

simple matter of enforcement discretion. This is suspension of the 

law with regard to an entire category of people. 

Mr. GOODLATTE. Professor Turley, it would appear that the largest impediment to Congress seeking judicial review of the President’s failures to faithfully execute the laws is the doctrine of 

standing, which according to the Court is a doctrine required by 

the separation of powers. At what point must the separation of 

powers principles that standing is intended to preserve give way to 

the separation of powers concerns a congressional lawsuit would be 

intended to enforce? 

Mr. TURLEY. Well, it is an excellent question, Mr. Chairman. I 

have to say that I believe the Supreme Court has made an unholy 

mess out of the area of standing. And many of our problems are 

attributed to the fact that they have left the two branches to fight 

out in sort of raw power as opposed to resolving what are not political questions, but structural ones. 

And I have long believed, and I have represented Members of 

this Committee and other Committees challenging presidential action, that Member standing would go a long way to resolve some 

of these conflicts. They would not fester. Whatever the framers 

may have meant in the first three articles of the Constitution, it 

cannot possibly be this. It cannot possibly be a standing principle 

where literally no one seems to have standing to bring an issue before the Court. And it cannot possibly mean that a President can 

go to Congress and ask for something, be rejected, and then his 

unilateral authority to achieve the same result. Those things to me 

seem quite beyond the pale of anyone that looks at the Constitutional Convention. 

Mr. GOODLATTE. Thank you. My time has expired. 

The gentleman from Michigan, the Ranking Member, is recognized for 5 minutes. 
98 

Mr. CONYERS. Thank you, Mr. Chairman. I first wanted to begin 

by asking the gentlelady or good witness about a statement that 

she posted on February 7 in which the title was that not even Congress can sue the President for failing to enforce the part of the 

Constitution, that sometimes, as has been argued here today, that 

he can successfully establish the standing. And it was titled ‘‘Why 

Not Even Congress Can Sue the Administration Over Unconstitutional Executive Actions.’’ Do you remember that was posted February 7 of this year? 

Ms. FOLEY. Absolutely. Yes. Yes, in fact, very recently—— 

Mr. CONYERS. Do you still hold to that position? 

Ms. FOLEY. No, let me clarify, if I may. If you look on footnote 

119 of my written testimony, which is on page 31, I specifically 

note that I did not pick that title. When you write an op-ed for a 

large blog, like the Daily Caller, you write the substance, but you 

do not write the title. 

As I express in that footnote 119, what the article is about, if you 

read the substance of the article, is that I am saying that if the 

courts will not enforce the faithful execution duty, and if Congress 

will not impeach the President, then we have a problem. That does 

not mean that I do not think Congress would not have standing to 

sue the President if they tried to do so. That is a separate question. 

Mr. CONYERS. You did say in there, though, that Congress probably does not have standing. 

Ms. FOLEY. I said most people think Congress probably would 

not. I am not one of them. 

Mr. CONYERS. But you are not one of them. 

Ms. FOLEY. That is correct. 

Mr. CONYERS. But you wrote that in the article. 

Ms. FOLEY. That most people think that? Absolutely. 

Mr. CONYERS. Okay. I am going to offer that into the record just 

for all of us to be able to examine it. 

Mr. GOODLATTE. Without objection, it will be made a part of the 

record. 

[The information referred to follows:] 
99 

TI'C Dail) Caller» WI~\ llOtC\·enCongrcss emlsue IlK:: adminislratiollmer. hltp:lldail~caller.com/201~/02/07/\\Il}-not-e\Cll-collgrcss-ean-sue-[lJe-ad. 

lof2 

- The Daily Caller - http://dailycaller.com -

Why not even Congress can sue the administration over 

unconstitutional executive actions 

Posted By Elizabeth Price Foley On 10: 52 AM 02/07/2014 In I f'Jo Cornrfle.1J.lli 

What happens if a president refuses to "take care that the laws be faithfully executed" as required by 

Article II of the Constitution? The Framers assumed that neither Congress nor the courts would 

tolerate such usurpation. In Federalist No. 48, James Madison said power was "so divided and 

balanced among several bodies ... that no one could transcend their legal limits, without being 

effectually checked and restrained by the others." Madison's confidence assumes a wayward president 

could be reversed by the courts, reigned in by Congress or - as a last resort - impeached. But what 

if none of these checks and balances works? Americans may soon find out. 

First, courts have limited ability to check a president's failure to execute. The primary obstacle is 

"standing," a doctrine that requires a plaintiff to have a concrete, personal injury in order to sue. 

Citizens can't file generic lawsuits to enforce the Constitution; they must prove that the government 

has harmed them in a personal, palpable way. 

When a president delays or exempts people from a law - so-called benevolent suspensions - who 

has standing to sue him? Generally, no one. Benevolent suspensions of law don't, by definition, create 

a sufficiently concrete injury for standing. That's why, when President Obama delayed various 

provisions of Obamacare - the employer mandate, the annual out-of-pocket caps, the prohibition on 

the sale of "substandard" policies - his actions cannot be challenged in court. 

Similarly, when the president decided not to deport certain young people, not to prosecute most 

marijuana users, and rewrote the work requirement of welfare reform, courts cannot rule on these 

acts' constitutionality because no individual has suffered the personal harm required for standing. 

Sure, the Constitution and its separation of powers are tremendously harmed. But the Supreme Court 

has made clear such generalized societal harms won't suffice. 

Congress probably can't sue the president, either. The Supreme Court has severely restricted 

so-called "congressional standing," creating a presumption against allowing members of Congress to 

sue the president merely because he fails to faithfully execute its laws. 

If courts can't be counted on to check the president, couldn't Congress just enact another law 

reversing him, or even impeach him? In today's hyper-partisan climate, the answer appears to be no. 

Even if the House passed a bill undoing presidential action - for example, a bill that declared, "We 

don't want individuals brought into this country illegally to be exempt from deportation, and we 

really, really mean it this time" - the Democrat-controlled Senate wouldn't likely allow a vote on the 

measure. House Republicans passed a spending measure this fall to keep the government operating. 

But because the bill included a one-year delay in Obamacare - something the president threatened 

to veto - Senate Majority Leader Harry Reid refused to even bring the bill to the floor. 

Indeed, why should Congress even bother to legislate in the current environment? If it somehow 

miraculously passed something the president opposed, it would be promptly vetoed, and getting 

two-thirds of both Houses of Congress to overrule his veto - particularly in the Senate - is as likely 

as a snowstorm in Miami. 

Even when a congressional majority agrees with the president and passes a law the president signs, 

there's little confidence he will faithfully execute the law as written. Why pass comprehensive 

immigration reform, for example, if it includes tight border security or deportation measures with 

which the president disagrees and may ignore? As Congressman Paul Ryan put it, "Here's the issue 

that all Republicans agree on: We don't trust the president to enforce the law." The president's failure 

to faithfully execute has made Congress grind to a halt and with it, democracy itself. 

If the president's actions are so bad, why not just impeach him? Presidential impeachment has 

occurred only three times. Reconstruction President Andrew Johnson narrowly escaped conviction 

after the House impeached him for firing the Secretary of War in contravention of the Tenure of Office 

Act. Richard Nixon resigned after being impeached for obstructing an investigation into the Watergate 

break-in, and using the IRS and other executive agencies to target political opponents. Bill Clinton 

l/5/2014 1:58 PM 
100 

TI'C Dail) Caller» WI~\ llOtC\·enCongrcss emlsue IlK:: adminislratiollmer. hltp:lldail~caller.com/201~/02/07/\\Il}-not-e\Cll-collgrcss-ean-sue-[lJe-ad. 

2of2 

was impeached for abusing the judicial process and executive power to cover up his extramarital 

relationships. The Democrat-controlled Senate acquitted him. 

The one thing all three attempts at presidential impeachment share is this: An assertion that the 

president was failing to faithfully execute the laws. Each situation involved - to a greater or lesser 

degree - a president intent on ignoring or manipulating the law for his own political or personal 

advantage. 

Has President Obama committed similarly serious acts? Some Americans believe his unilateral 

changes to various laws and use of the IRS to target tea party and conservative groups are just as 

serious as Clinton's, Nixon's, or Johnson's transgressions. But even assuming this is true and the 

House passed articles of impeachment, would two-thirds of Harry Reid's Senate convict the first 

African-American president? The question seems to answer itself. 

Sadly, in the Washington of 2014, partisanship trumps constitutional principles. While President 

Obama's pattern of failing to execute laws is serious, the ability of courts and Congress to stop him is 

shockingly limited. The Framers relied on the other branches of government to jealously guard 

Congress's prerogative to make laws and the president's duty to faithfully execute those laws. 

Unfortunately, the Framers may have been wrong. 

Article printed from The Daily Caller: http://dailycaller.com 

URL to article: http://dailycaller.com/2014/02/07/why-not-even-congress-can-suethe-administration-over-unconstitutional-executive-actions/ 

Copyright © 2011 Daily Caller. All rights reserved. 

l/5/2014 1:58 PM 
101 

Ms. FOLEY. Thank you. 

Mr. CONYERS. Now, Professor Schroeder, can one house of the 

Congress, in your view, successfully establish standing to sue the 

President to enforce the take care clause? 

Mr. SCHROEDER. Not under existing Supreme Court interpretation of congressional or legislative standing. 

Mr. CONYERS. Individuals can if they can get standing. 

Mr. SCHROEDER. Individual citizens who have suffered what the 

Court calls a cognizable injury, in fact, can certainly sue to challenge whether the President’s action has strayed outside of discretionary authority, and, therefore, is unlawful and should be rescinded or whatever. But Members of Congress have never been 

granted standing by this Supreme Court, and I do not see any inclination for a shift in their standing doctrine simply to challenge 

whether a President’s action under a statute is one side or another 

of the boundaries that that statute says. 

Mr. CONYERS. Now, Professor Schroeder, the clause itself, ‘‘take 

care that the laws be faithfully executed,’’ does that clause itself 

not support and require the exercise of discretion by the President? 

Mr. SCHROEDER. Is that a question for me? 

Mr. CONYERS. Yes, sir. 

Mr. SCHROEDER. Yes, it does. 

Mr. CONYERS. And so—— 

Mr. SCHROEDER. It is inevitable that the President has to interpret what the statute means. He has to figure out whether it applies in individual cases. He has to make decisions about executing 

them. Even the simplest statutes are going to require those kinds 

of discretionary choices and judgments. 

Mr. CONYERS. And we have numerous examples where Presidents have exercised that authority under the Constitution, so numerous that it is surprising that we are holding, I think this is the 

second hearing, on this same subject as if this President has gone 

overboard with this or something. As a matter of fact, I think there 

are numerous examples of other presidents actually exercising this 

discretion far more than the current occupant of the White House. 

Mr. SCHROEDER. You could not begin to number them. 

Mr. CONYERS. No. And so, I want to kind of lower the room temperature, taking into consideration the two witnesses on either side 

of you that this is a very dicey proposition that the Committee on 

Judiciary is going into for the second time, as if this is getting out 

of hand. 

And so, I tend to agree with the proposition of the witness here, 

Ms. Foley, that probably not even Congress can sue the Administration over unconstitutional executive actions. As we all know, 

there are many other ways to get at a president who they think 

has really strayed far over the lines. 

And with that, Mr. Chairman, I yield back the balance of my 

time. 

Mr. GOODLATTE. The Chair thanks the gentleman, and recognizes the gentleman from North Carolina, Mr. Coble, for 5 minutes. 

Mr. COBLE. Thank you, Mr. Chairman. Good to have the panel 

with us this morning. It is my belief, folks, that President Obama’s 

credibility rating presently is fragile at best, expired at worst. And 

I appreciate you all being with us today. 
102 

Professor Turley, 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 acts? 

Mr. TURLEY. Thank you, Congressman. As a practicing criminal 

defense attorney, I must say this is not like any prosecutorial discretion I have ever dealt with. Prosecutorial discretion is normally 

based on individual cases or relatively nuanced classes of cases. 

They do not involve categorical exclusions, like the ones we are 

dealing with here. 

They also do not involve actions that are taken after submitting 

to Congress requests for changes, being rejected on those changes, 

and then implementing them in the name of prosecutorial discretion. If that is allowed, then obviously it would turn our entire system into a pretense of democratic process. It would make a mockery out of the separations. 

What is fascinating about these areas is they happen to be areas 

in which we are deeply divided as a Nation. And that really makes 

this more serious, in my view, that there is a reason why compromise was not reached on these issues. The country is deeply divided. The framers never guaranteed that you could get compromise. What they guaranteed, or they thought they did, was that 

you have to try, that you cannot go it alone. You cannot freelance. 

So I do not view this as prosecutorial discretion. You can call it 

that if you want, but from my view, it is the clear circumvention 

of Congress, and for Congress not to act, in my view, borders on 

self-loathing. I do not understand why Congress would allow a 

president to come to this body and ask for reforms, some of which 

I happen to agree with, and then simply take unilateral action once 

this body refuses to implement those reforms. 

Mr. COBLE. Thank you, Professor. Professor Foley, let me get 

your opinion on a hypothetical. Sometimes hypotheticals can be 

treacherous. I do not intend for it to be, however. During his presidency, George H.W. Bush proposed that Congress lower the tax 

rate on capital gains. Congress did not enact his proposal. Under 

President Obama’s assertion of executive power, could President 

Bush simply have instructed the IRS not to enforce the tax code 

on capital gains greater than 10 percent? 

Ms. FOLEY. Well, I do not see why not. I mean, it seems to be 

an apt analogy to me. That was a benevolent suspension of law 

does, right? So you’re hypothesizing that a conservative President 

essentially takes the Internal Revenue Code. He does not get the 

tax relief he requested for Congress, and so he unilaterally decides 

to change the rates that are explicitly mentioned in the Internal 

Revenue Code itself. 

And, of course, when he would do that, that would be a benevolent suspension of law because it is benevolent in the sense that 

it is not hurting anybody. People are paying fewer taxes. To the extent that, you know, the residual rest of the country, the taxpayers, 

are hurt by that, the Supreme Court had made abundantly clear 

that there is no generalized taxpayer lawsuits allowed. They do not 

have standing. 
103 

So you would have to find some individual that had suffered a 

concrete, particularized personal harm from the President’s lowering of the tax rates, and I do not see it. So you would have a classic benevolent suspension scenario, and I do not think that that is 

any more farfetched than what President Obama has been doing. 

Mr. COBLE. I thank you. Professor Schroeder, let me try to get 

another question in before that red light illuminates. In your opinion, sir, at what point does a President cross the line from exercising his enforcement discretion to violating the duty of care that 

laws be faithfully executed? 

Mr. SCHROEDER. When he is no longer making a conscientious 

and good faith effort to interpret the statutory authorities that you 

have granted him and using that effort to stay within them. I think 

that is the boundary, because making any particular mistake by 

itself does not warrant the conclusion that he is no longer faithfully 

executing the laws. 

Mr. COBLE. I thank you again for being with us today. Mr. Chairman, I yield back. 

Mr. GOODLATTE. The Chair thanks the gentleman, and recognizes the gentlewoman from California, Ms. Lofgren, for 5 minutes. 

Ms. LOFGREN. Thank you, Mr. Chairman. Before asking my questions, I would ask unanimous consent to place in the record a statement from the American Immigration Lawyers Association and a 

statement from the National Immigration Forum. 

Mr. GOODLATTE. Without objection, they will be a part of the 

record. 

[The information referred to follows:] 
104 

A.MERICAN 

IMAI1GRATION 

U.WY~S 

ASSOCIATION 

STRltn.r,u or Ih r A",erir." I",,,, igno l ion L.I •• y ert ASlociAlion 

S"bm;,wllo 'h~ Cn",.";"",, 0" th< J.,rt;d..-y nr,h< U,s, li D"'" or R<~.·.., <"'K'i, .... 

lI rill~ "II l::lIrorci,, ~ llift Prfl id.m', Co,,"i""i'''I.1 OUly 10 F~llhfll ll y Enc ul' . lh. .~ 

Frhrllary !6, !1l14 

Tn" Am,,"can Immigralioo LI •• )'.rs A.\wciOli"" (AILA) submiU Ihi~ Slal""''''11O III< 

COOI"liu .... "o Iholudidary AILA Ii Ilw "ali..,.1 a~sociali"" of;mmig"lion lawyors dtablish«l 

1<1 proo'OlC )~S1((. and ad~ocale f(H' fair and ~OlSQIUIbk '""ni(Vlllioo law . nd policy AlLA has 

O'I tt 13,000 aU()fl1ey Il!1d la .. prof('$!01 m('ll1bcrs, 

Thil h~ring namine:s Ihe presiden.' . duty 10 eXe(llle lhe law Wil" respec1 IO immii\fl.l;\)1\ law, 

AILA'$ assessmenl i~ Ihal Preside"l Obama 1$ wI'll u his p,~dlXessor, P-r"idtm B"sll, hI" . 

gone hcyond failh fully enf"",ing immlgralioo law 10 dramalia ll y increasing i, o,'c, Ihe pasl 

decade The rapid e~pansion ofimnlill'llion cnforcem.::m has nOi na:essarily f~SUlted in more 

~IYeCIi,'e enforecmer-I, bUI hIlS resulted in a decline in Ihe accounTabilily and coo.sisH~ncy of 

enforcemeOI praclices Of!!,e.1 concfm III AlLA is Ihal, in Ihe rush 10 ..,,!.ed;\e Ihe deponalio"," 

of large numl>ers of people r' OOllhecounny, ihe Department ofHomciand Security has 

crlOlprom;!oed Ii!nd~menlal CoosliM;ooal v~luts ~ch as due P'DCess Illat a'~ Ihec<Ke of 

AOIeriCll's idenl;t)' IHfarms shoold beimpl~menled I" brin~ lilt", cnfin'temtnl ~Cliccs back 

00 " .. ~k 

I" Ihe ~o lJ fiscal year, ov~f1l1 1 imm'lVlliOf' ""fofoc",enl tominued al unpreCtXlenltd levels 

fly early 201 4, OHS will h~, 'c fW1m'ed 1 million P"OPlc durin!! Iltt COl".." of 'he {)bama 

admini"f1lli,." al. lime ,,~, "el mi!!l.tioo IOlhe U S i. al '" neal ,-em "nd hNder 

"'"",,,inWi ore 01. 4Q,~e~r loll' 

R.",O\'a ~ lt~ hapl"'"lng quiclly oftrn 81 Ihe ex"""", of due proces" OilS illCf\'asin!!ly 

relics Of' summary proo«lllrci IhallJlow cnforc....",enl al!~'flI$IO bypass imlnlwatiOf' 

COIIrt!, Th"IIVO ,nOSI wonmoo ,",,,,mary procedures, e~!.edlltd ,....,'\1\'3.1 " and 

''reinS'''(em,,"1 of rcmOllal," lripltd in liscill ye;v 20 12, r':;in!! III 311.,700 "nd COO$lllutinl! 

7S% ofilll DHS reonO\'ills Ihal yea, 

Federll criminal PfO:St:t'Ulioos of immigrariolHelaltd ofT1l!I>es ~f1Ill Ihe h'Shosl poi"1 io 

b'5101y-<'P 468 pen:~nI from F\'1003 

Immigralioo deler-lion mle," cominue 10 '; ... and nOW 10I3! .booI4JO,OOO indi"ldua!> eo"" 

ye"r,'I' COS! ofS2 bil!i"" .nnually 10 Am.:';c,n t. ,paye,.. 

AlIA Mallo",1 OI"ce 1:1]1 G Slrtu!Hl, s.. m. ~ oc:mr, 

I'no;q: 2Il1!&11 16.XI 1 f,.,1(Il.lBlIB53 I ...... "'101>' 
105 

M1ERlCA.N 

IMAIIGRATION 

U.WYERS 

i\SSOClAl'IClN 

PrO'tP.lorial Ub rtl! " 

Crilics h •• ,<,- argued mal DHS has used ils cUrrem proseemorial discretion policy \0 circum"""1 

Il>c.law."d decrea>cenfon:emcnl ofimmigralion liW The .mhOri!), OrllllawenforccmCIlI 

~en"ies 10 ""ercise discmi"n. how~v",. is "' II accepied in both the civil and Ihe crimin,l 

a,on. For decad..,.leSOCY ImmigraliQll aod NalUraJiz.a lion Scrvi~ (INS) and OilS. und ... boIh 

R~ubhcan .nd Dcmoc,at" odmini'lt1Itiom, have issued jX>Iici~ on ond r~uired Ihe lUeof 

pro<;<:rut()l"lal diocrelion Proscculoriai di,c""ion is such"" impon""l principle lhat, in 1999. 

1 ... ·enty""iShI R."ublicM lIl,d Oemocf3tic mtmbnl ofCwgress "'roce to lile Attorney (J<,nenl 

Clnph.si>:inJ,! II\(> impMano:eofprosecumrial dlocrclioo in lhe immi!!muOOlicid '!'he approprial~ 

e.xerci~ ofdlscrc1ioo Iuds 10 ~lIcr lariJ""nl! and smarter enforctmenl, 

WhileprtlSeclllOf'il 1 discretion i,. fully Il!1Propriale fram~work forimmigralion ""forcemenl, 

Implemenlaliw "fih~ policy h .. b""n in"""si.leni. CUSI""'. and Border PrOtooion (Ca p). 

which enlllg~ in substaml.1 removal al1i"ilie.-, hIS n('.'fr po.,hli.shed . p'05eI;IIlorial di.cretion 

""Iicy. \\,illo re'p<:Ct 10 Immii!Jlotioo Md CUllom~ F.nfOftemenl (ICE) .. .... 'Ccnl re-'ie", showed 

Ihot only ' ''''''' 7111'I"I:tnt ofall cases WU~ d~gl\Jted for pto>ecntoo.1 diKretioo - ... hiclo i. a 

luwernne lh.n ","ny 51all"m), forn,. of ,elief tlo31 0" im",i~llItiO/l judge ",,,,,Id gllln! .fler I full 

bcarinll. Some tCE field office. r".i,! """sid"';nll di",,,,,j,,,, al.tt A • • COIlS<1JU",'Ce. ICE 

COIllinu~ to remove hUlIdred. oflhou .. od. ofl""'ple ",ho ~ f.mily in lh. U,S., COIllribute to 

our oommunili".. Iol>'. Iol'ed in Ihe U S fbryears. and ... oold quulify for legal SIillU5 und..-

reform legi.llliOJl culTeJ1t\'i pending io COO!!1'fSS 

n.;;;; ~~ ; """'''' ', ;m." ~~~' =;.~.'";""O process and the prote.:riDrl of c;.,,;1 n~hls OHS relies 0" >!Immary rt1110val procedures tNI 

byJ1ll'S immi)ltalioo ct.um.nd olT~r e:<1,emeiy Umiled j udidalll:"';ew 

OilS conlin"", 10 hold many !1()11cililens.lllcluding la"ful pennantnl rffidcnl$ and asylum 

.""km, in d01<'!11ioo wiihoUl ov....-p,miding" cu.!ooy delmninalion helrillJl bdore aj udge-. 

fund.memol dtpnvllion of due proc." •. Each day. lhpUsa(1d, ofno!1ciliztn! ~ htld ill DHS 

MIC1,U0I1 ",ho pose no night risk IJI IhreallO public ,..rely ."d Ih<"ef"",Sbould l10t h."cOOn 

detained In the /irsl place. induding asylum .ee~c" aod Olhe. "ulncmble p<:rSl)f1, PQOr 

condi!i"", in d.lenli"" are still" problem. and ('.'ef)' y= people I",ailing their CpUn hearing> 

die in i",miIlTalio" delC!lliO<! r''''lilies. ;nclvding OOe dealn reponed 00 FebfUa ry n in a HOII,;!O" 

fae,lily ICE ~as undc"'lllI~ed much leIS e(ls y artd e~lil'nle y l,fTcc!i,'e aU(Iffia!i" t' III d<:lcnllC11l. 

,ueh u .... Iease 011 recol!lli:(l!!lCe. bond, cleclrOf\ic GPS !...,hnol og;~!o. and other m(lniloril1S And 

AlIA Ma!IoPiI OI"ce 

\331 Cl s.uMlIffl,-Ilta m. ~ DC lim'> 

P\Icq.~IN,II I f,.,1IJl.lBlIB53 I """,,,,II!>, 
106 

AMERlCAl'o/ 

IMAIIGRATIO:-: 

U.WYl:RS 

ASSOCIATION 

!lUpe .... ,isioo mel hods, These altemm,,'es are 51anda,d "",elice ,n criminaljuslice S)'Slems U~ 

lhewumry Coool"',ed 10 billion. sperll ""nu.lly on dell,mion, ollemaliv"" ,ep~sem a smarte,. 

less c<>stly . and more human"way IQ ensu'e (.'ompli,,",,<,- with ,m"'\I:I'"'I;oo laws 

01 IS has also enlangJed 10.;:81 ~riminal P'OCC~S alld l«f<oral irnrniJ:!"a"<)n cnfOr\.'mlcnl in 

C()I\slilutional ly S<lsPU! w.y o FI)f "'''''"plo, the numbl'r of civil immigration detainers iHued by 

lCE.inc .... asN d,.",.tlcally. f'o"'Jolt 15,000 in FV2007 10 "' ~ !SO,OQO In FV201~. These 

""I.i"",,, ,eque5llh. t poIi"" d"'ain individuals for possible ,",migralion viol'li", .. wilhoot . 

warram or probable cause. withOU I • hearinl!. o/len ",ithOU I nOtice. and often for ~ p,oIoogcd 

period of time 

C BI' itselfh"s grown!i<) ",,,illly;n """em }'elIfS ,h.1 ConCcnl$.ri~ u IOt h~ir .d"'lu.te lTai"ing. 

ove<siJ!lIl. and aC0.1nUlbility Since 1006, Congress h.~ funded. nea,·doubling of Bordc'" I'ltml 

agents, from 12.IS5 10. p<:a~ Onl,444 in 2011 But .ccompanY"'lIlhis ramp-up Ofe ... ell, 

docunlenled '.pan; ofrighls ,iolations and allousive practice., most nOlably the m.ny ex.",ph~. 

of improp<:r u'" or force. indud iTll! lethal forct by Bord.,. I'aupi. Several cUtS of lethal fon:t 

,..~re in response 10 rock Ihrowing. LaSt ,..eek. a"(){n« indi,idlill wa'5h(){ by I Bonier Pmrol 

Ill ... "ining .he "l!<'nl with. ,ock Tne "l!<''Ill '''Maine<! minor injuries. The p'OI~t;oo nd safety 

of law ."lQn:cnlent o/licerl; I. p."'moon~ but nOl al th~ C<)S! of o,-.<looking cxCC>.; ,, ~ and 

im~r,,~ .:.ff"",~ Abuli, e CBP delen';"" pr.C1ic~s inciudin.\! k~-epinll facilities II 

d.ng~,ou'ly cold t<'."JlI'f3t"' .... v...ro.1 and phy. ieal intimidation, and lIck orb"," he.,.lll, and 

hyl!ien~ f"""',i",,_ ,. fOOlinely ",poned by men, w<lInon. and children held It pons ofent')· 

'" in Bord~..- PIl'ul delen""" r.ciliti ... WidCS!> ..... d ,eport' of racially nlOlivaloo orrest •. ~-om:i, ~ 

interrogari"" IK'lic., .nd deni.l of the righlto 0:000..,1. and m;';"fommi"" orcocn:i\"c l&eti.,. by 

CBP offi"",~ .. 1<1 "g""U I .. di"g to ,,,di\'id~oI s . illuinll vohmlary IkpIlf1U,. ro"", - ,,,,,,,hinll i" 

deport"lion ofnu",y who may have had III! .v.n"e for 'tiief - an: also oren"ce," . TIo ..., 

probl.", •• which IUlderO\;ne Ih~ rights ofl>uth citiun • ..,d """citizens. Ole ",aM w"". by th e 

lac\: "rany uniform or eftective complai", medu,ni,m 10 ood' .... mi.conduct by CBP ollk ... ,. 

Finall y. in ""trying <lUI Ihe COOtrO"ersjal "e.'pedited """""01" pro"-edu.e, BOIdet Pa'roI 1S 

oncn fa;IIU I;k wh",he,.n indh'id",,1 hu a fnr of'\'IuminglO his Ot~ h",,,. """,my b(,r.,,,, 

t>tderin ~ t~.", 't:nHwed . • "d ",'en d,,,,y individual. W~" do e:<:pres, $lick a fj,.,. Ihe ability to SIan 

til. ~s) I\\", oppliclition p~~ 

\ljol.r tck f:n'ryffi,j, Ib ' No, IlI't n Fr .. lbl. 

Tn.re na~e been oonC<'fJ\S thatt~e Adminislratioo has fail ed to i"'plemenl a nationwide 

hi"",e.ri. exit $Y't"'" For ",n""hln .. d~de, Coo!!,ess ~'" r~uirf(! 'n ~"eQJ'; ve br""ch ,n.he 

AlIA Mallo",1 OI"ce 

\ll'CSlJtlilIffl, &am~oc:mr, 

~2IIl!JII111iOO I fJI,1IJl.l8l1B53 I ....... "'lo9'f 
107 

~ AMERlCi\N 

IMJ.IIGRATION 

U.WY~S 

ASSOCIATION 

'mplcmOlOI ,he flali(pnw;de u;e of & bioomric cnu}'-e:.il wna In<:kinll ~Yilcm !.>perllb""al t land. 

lir, and""" pons ofentry While the enlry ponioo h3.$ b.:en implemented. lhee~il proces.s has 

I\OII>een implemented due primanl)' 111 hiJ?h to'll ana DpCnlt!!ma1 and In(rastrucII,re hurdles. II 

biommic .~i51 ~Slem has ~"" pilOled W"erillim~~. bul each p; iO! hIlS encoontcred problfm5 

"'lIh lh. avallability of icchI\QlOlli"'", the CQSI and ~slbi ily of ~Jlllnde<l infrastructure. and Ihe 

poIential rh'sativeimpact to bu~in.s' and Ira .. 1 In 20 13. in testimony before CQl1gr~'I. DIIS 

"~Ior.lc..:l ils CO/l1ln'ln,cnllo;> m()ving lQ abiQmClric~Jr ",<'1 system In the meantime. DtlS has 

"l)fked 10 <kvd<>Jl an ~dvanced bi"lV"Phir exit SYHom in the port.lhat krn as a funcl.""a1l'el 

c\lSI-cfft!C\i,-e soI ulioo 

IIMd. r .~iQ " .:nr,urrn,rnl Shq!! jnl ~!>i d Gm,,-,h 

ClI!' "'1fOl"'~m""ll lhoril)l and activit," ha~ee..pandt'd and SWf~! deoper In!o Ih eln!~rior mille 

counlrY In Z()(I.I, DHS extended Cflf" • •. ",horily to u"" the '~n,mary dt,xlflalion prac!ic~ Of 

e.~ pcdiled ~m ",· llo encomp'" individuDls r"und ",ilhool doc:umen lf(orwil h false DC\ ,m1.'OI~) 

wi~ in I 00 mil~. or .ny inlernati<HI~1 bonier. ThaI broad aw lmrily 00\-," 1M "hol~ of !he SIIIIC 

of Florida ond I.'II-e ,"'alh oflh~ reSI oflhe CIlI,"I!), AIl....- Ihi. poIi~-y ch.<Wf in 2004. Ih~ 

n"mber of ... <pedil00 feJI1'''·ol. d.amalicall y i",reased. nearl y doubling from even Ih" gh~SI 

I.\·el •• ..,,, duri<\!!. the pr evi OlJ'~. W, Bu,"" admini'U1I1ion. 10 " r..,ord 163,000 in FY2012 

M"""" · ... , ICE h •• ddl"~-d bor-der" r.",o,-.I. ve'Y bfl);!dly, 10 indude '.di, "lual. ",110 ""ere 001 

cncoonle....:! Rllhe border alill bUI wc. e l' pre~ .... ded afler residing in Ih. U S forll"i!e a while 

For "".mple. ICE hiS defined "border remova ~ in some places 10 include ill<'!lll emmDlS 

pre lo ~nded II Illy li",e "-l1l1in 3 years of em!)' - a ~ery 101111 time Thus. the diSiinClioo that 

.i1i~ $ IIIwe drtwn l>etweet' "interior" ;mmilO!'!""" enfOfCt1ncnl (by ICE) and "bOfdtr" 

t1)f(JJtemenl (by CBP) i. much It •• meaningfullhlln II appear. al r..SI blush COl\"",u~ntJ y. 

!CE'$ FY 20ll data doe. nOl ""nnil any Itrtighlfoowa.d sepallilion oflmerior and border 

removal aClivllles, ~ .ealily is Ihollnll1)18ral;on .,.,fo.-«:mcnt continues al aJ!!lfw,velevels 

AlIA M,nlo",1 OI"ce \nlGSmt!ffl,&am~ OC:mr, 

~ 2IIl!JII111iOO I f .... 1IJl.18I1BS3 I ...... J<lollif 
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Stateme nt for tllC Record 

House Judiciary Committee 

"'Enforcing the President's Constihltlonal Duty to 

Faithfully Execute the Luws" 

!February 26. 2014 

The National Immigration Porum works to uphold America's tradition as a na tion of 

immigrants. TIle Forum advocll\es for the value of immigrants and immigration to the 

nation, building suppor1 fo r public poliCies that reunite famili es, recogni1.c the 

importnnce of immigration to our economy nnd our communities, protect cfugt!~, 

encourage nCw(''{)U1Crs 10 become IICW Americans nud pI'QIIlI)le equal protection under 

theta.w. 

Introdyction 

The Nalionnllmmigrnlion fOnllTI looks forward to II spirited and balanced diSCllssion of 

executive power in this hearing to L"Valuate the President's duty \0 failhfuUy execute the 

laws of the Uuiloo Slates. To th{, e:<:tenl members of the Committee may distrust the 

President or othc",,~se disagree with various e:<:t'('utive II ctions laken by the 

Administmtion, specific.,Hy as the.), relate to immigratioll, we urge those members not to 

let this distrust become a barrier iJl&a inst fnir consideration ofbro;ld immigration reform 

that incl udes a path to eventual citizenship. 

We believe the current conversation around immigration refonn is (lifferent. In thc past 

two years, an aUilwee of conservative faith, law enforcement and business leadership 

has U)mc together to forge R new consensus !)n immigrants and America. These 

relationships fonned through outreach in the cvangelical community, the development 

of state oompllcL<;, and regional su mmits across the country. 

Due to these relationships the Nationnllmmigration Fonlln humched the Bibles, Badges 

and Business for Imllligratioll Reform Network (BBB) to achieve the goal of broad 

immigration reform. Targeting key states through 11 combination of field events, media 

coverage and d irect advocacy BBiB aud its partners have had more th;ln 700 meetings 

..... ith Mcmbers of Congress and their staffs and held 303 cvents in key congressional 

districts across 40 states in the ~,tyear. 
109 

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As the Committee looks at tbe President's d\lty to enforce our nation's laws, it is 

important tu understand how far we have come when it cnmes to border and interior 

enror~ment and the robust enforcement occurring. I-!('ads of oorder agencies under 

both Republican and Democratic Administrations ;lgrcc L1ml the best way to improve 

horder st.'<.:u.rity is to fix the immigration system by providing legal avenues for work('rs 

and families trI enter the United Slates. This will allow Itlw enforcement and border 

officials to focus on protecting OUT' communities by apprehending criminals and tracking 

len-orist thre,lts rather than expending excessive resources on t:<:onomic migrants. 

However. as with nny I)rogram, th-ere is room (or impl'Ovement. 

The f onlffi has written extensively on the need for smart. enforcement al our nation's 

horders and the interior of the t'Ountt'y, including the following ,'ccent Fonull's IXIpers: 

~What Does Smart and Effet"tive EnfQn;ernent Look like?", "111e '!IoniCI' Bubble'; A 

Look ;It Spending On U,S, dtr~" , "The Math of Immigration Detention" and -~ 

Here: Reduce Wasteful Spending on Immigration Enforcement." This Committee can 

take immediate steps in this area by examining WllyS to update our legal immigmtioll 

system and implement workablesoll1tions. 

Enfot'CCIDCIlt Priorities 

Over the !;last ft'\v yenrs, Immigration alld Customs Enforcement (ICE) has rapidly 

stepped up interior enforcement, increasing the number of people it dNnins and 

deports, One symptom of our bro:ken immigration system is the exorbitant ~Jlending 011 

det3ining hundreds of thousands of immigrunts annually. Simply by litniting physical 

detention only to those immigl'llJ1L~ whose release \\'ould po~e 3 danger to tbe 

community, Congress can save billiOns in lax dollars, while avoiding iuf1icting a costly 

and severe punishment on a population that poses little danger to the general public. 

Instead, Ihe government should move away (rom tbe current overreliance on detention, 

employing less e:\"pensive alternaTive methods o( monitoring the majurity of immignmts 

in detention, Such an approach is more humane, more cost-effective, 

In 2011, ICE began prioritizing enforcement against repeat imllligration violators and 

those with criminal rt!Wnls, rath'~r than targetin& its limited res.uur~s on immigrants 

with no criminal records, who pas-e no d~nger to the community, ICE's \lS(.' of discretion 

has been limited, however, ~nd SOllle undocumented individuals who pose no risk nre 

still being detained lind deported, Smart, targeted application of discretion focusing on 

repeat and criminal ~olators is au Opportunity to focus on the true threats, Yet, more 
110 

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can be done to larget enforcement in a smart way that saves money and incr~ses publil' 

safet)'. 

III JUDe 2012 the PresidenL look an additional step fonvard in prioritization of 

immigration enforcement by announcing Deferred Action for Childhood Arrivals 

(DACA). DACA allows illdil~dua!s who came to th~ United Slates before the age of 15 

and are younger thun 3 1 to apply for defe rred actiOll whicll aUows thelll to remain in the 

country and work legally. It does not allow individuals to obtain a green card or 

cili7.enship and is valid in renewable two year inlerYals. This program was an exercise of 

the Prcsidcnfs authority to dcpriorilize those young individuals who were brought to 

the Un t~ Stales ru> ch ildren and pose no thn:at 10 society. 

e.~p it e iI more focused npproach by DHS \0 immigrat ion enforcement, the White House 

colltinue; to request bill ions of dQlhtr.; for ICE to oetain immigrants posillS no threat. 

For fiscal year 2014 (beginning October I, 2013), OHS and t.he White House requested 

$1.84 billion for OHS Custody Operations. This fundin g leyel would amount to over $5 

mi11iull per day spent Oil immigration detention. 

Ovcr U1C- past five ycnrs ulis administration hns deported nend )' 2 million people 

(368.000 last Yl'nr). approxim:ltely ;IS many ~s the previous administration deported in 

eight years. III fiscal year 2012 (the IIlUSt recellt year on recurd), ICE nlso set a record 

detaining 478,000 people while maintninlng the congressionally mandated 34,000 

detention beds. 

Enfortemcnl Today 

In addition, an illeredible lUllount of pmgress has been made in illlpmving Cllfort:ement 

at the border in recent years. Dat.a shows that our border today is more secure than it 

has C\'cr been. Millions of oll~,rs have been spent in the 1051 decade to improve 

enforcement and border security; aU indications are that this investment has paid 

dividends. Mo\ing forward, this Committee should work wiLh OHS 10 develop useful 

and achievable metri cs and bench:ll1 arks. 

Currently, Ihe entire Southwest border is either ~co ntrol k-d: "manag(:d ," or ·moll il ored~ 

to some degree. A record 2.1 ,370 Border Patrol agents continue to be st:ttiuncd at the 

border, II num ber that does not include Ihe thousands of ngents from other fedeml 

agencies, illcludillg the Onlg ElOrorcemelit Agency (DEA), the Bureou or Aleuhol. 
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Tubacco, Firearms and Explosive!! (ATF), FMcI'al Bureau of Investigations (FBI), and 

other agencies, supplemented by Natlollal Guard troops. 

As of Fehru(uy 2012, 651 mile:! o f border fencing h;wc been built Ollt of the 652 miles 

Ibut the Border Patrol feels is operationally necessary: The fence now ('ovelS almost the 

entire length of the borde r from Cal iforn ia to Texas. There is double fendng in many 

arcus. U.S. Customs and Border Protection (CBP) rely hl'uviJy on \t'(;hnology in order to 

secure the United Stalcs' borders nnd ports of entry. 

CBP now hns more than 250 Remote Video SUl"\'cillance Systems with day and night 

cameras deployed on the SouthwE~t Border. In addition, the agency relies on 39 Mobile 

Surveillance Systems, which are truck-mounted infrared cameras and r~dar. cap has 

also sent Mobile Surveillance Systems, Remote Vidoo Surveillance Systems. thermal 

irnaging systems. radiation portal monitors. and license plate readers to the Southwest 

Border. CBP also currently opellltes three Predator B Unlllanned gerilll drones frolll an 

Arizona base and two more (rmn a Texas base, providing surveillance con:rage of the 

Smllhwesl border across Ari;amll. New Me);ico, and Texas. 

Prior 10 August 2006, many persons who were apprehended at the border were relensed 

pending their immigr3tion hearing. Tlwl practice ended in August 2006. and now nearly 

aU persons crossiliS the border illegally are deUlined or irnUlcdiatc\y removed. ICE ~ 

nOI" funded to hold 34,000 indiviiduals in detention at any given linle. Over the course 

of the govcnlmcnt's fiscal year 2U12. ICE reported that it detained more thall 477.000 

individuals, an all·time high, and 166,000 more than Ihe 311,O{JO individuals who wcre 

detained io 2007. For fisclll year 2013, ICE reported that it had removed nearly 368,000 

pen;(Jns. bring the Qb3nlu Admini Slr.ltion's t01ll1 to Ol'er 1.9 million individuals deported 

in live years. nearly tbe same as :Presidcut George W Bush deported in eight years. To 

read more on how the 2007 ;:nfo rcement benchmarks have been mel, please read the 

Fomm's j)<1per "InuujgraljQn En(o!l:cment Today; 2Q07 Reform Goals Largely 

Ar&ODlplisbed." 

Conclusion 

As evidenet.-d by the fI.'COrd number or rcmov(lls. as well as the progress made on border 

cnfoTccmelit refe renced above. lhe current administrotioo is making immigration 

enforcement a priority and exceeding the level of enforcement ca rried out by previous 

administtations. However, future advallcemenL~ in immigr.ltion eufOr(.'emellt will 

depend on broader reforms to our broken immigration lflws. The system mllst change so 
112 

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thaI enforcement resources can target rc.:1J threa ts. The American pt.'()ple want - and 

desel"Vl;! - better immigration policy. OQ7.epS of ll11tiQnaJ. polls over the Ja~1 vear show 

overwhelming support for soJulkms that indude, in addition to smart enforcement, 

fuoctioning legal channd s for future immigrant workers and families. The polls also 

show brood support for tough but fair rules allowing undoculllcniro immigrants to 

remain in the U.S. \0 live and work 3ml - pro\~ded they gel right with the lAW -

evelllually have all npportlmily \0 apply for earned U.S. citizen.~hip. We cannot imply 

spend or enforce our way 10 a solution 011 illegal immigration. Border security, while 

important, is Oldy parI of the picture. Immigration refonns that promote legal 

immigration and snml'tly enfnrCl~ immigration laws can improve the security lit the 

border, dl}ing up the customers ror criminal enterprises that prey on migrants, and 

allowing our border agencies 10 rocus on more dangerous threats - terrorists, ,uld those 

tl'ilfficking in drugs, wt!;lPOIlS lind counterfeit currency, liS well as human tl"dffickers, 

OUf immigration problem is II n:1lional problem deserving or a nat ional, comprehensive 

Solulion. The Forum looks fOrYo'afd to conlinuing this positive discussion on how best to 

mO\'e forw;lrd with passing and enacting hroad immigration reform into Jaw. The time is 

now ror immigl"<ltion reform. 
113 

Ms. LOFGREN. Now, I recognize the Chairman’s discretion to 

allow Members who testify not to answer questions, and so I did 

not raise an issue on that. But I also do not want people to feel 

that I am taking an unfair opportunity to point out that our colleague, Congresswoman Black, was the one—I have just got to say 

this because it is very easy for us in Congress to attack career civil 

servants. They are not able to defend themselves. And I think 

sometimes it is important that other Members of Congress provide 

their defense. 

She talked about a lawyer who works for ICE, Mr. Andrew 

Lorezen-Strait, who is a career civil servant. He has been a lawyer 

in the agency since long before President Obama was elected. He 

was appointed to serve as the liaison for immigration detention 

policies with interested parties, community groups, associations of 

lawyers, and bar associations. This is not very different than, you 

know, what local police agencies do where you have somebody who 

can interface with community who are interested in policies. To call 

him an illegal alien lobbyist, I think, is quite a slur and very unfair. 

And Congresswoman Black, of course, as all of us do, has the opportunity to provide legislation. She did. She is a relatively new 

Member and apparently did not know that if you just prohibit 

funding for a title, it complies with the law to eliminate funding 

for that title, but essentially to maintain functions. So I guess she 

is doing a re-do, but I think to blame the agency for inept drafting 

is really, again, rather unfair to the agency and also to the career 

individuals. And I just felt it was important for some of us at 

least—I mean, ICE is not my favorite agency, but fair is fair. 

I wanted to talk, if I could, a little bit, Mr. Schroeder, about the 

take care clause as it relates to immigration. You know, I went 

over and listened to the arguments during the Arizona v. United 

States case, and it was a fascinating hearing before the Supreme 

Court. But in the decision itself, this is what they said, ‘‘A principal 

feature of the removal system is the broad discretion exercised by 

immigration officials who, as an initial matter, must decide whether it makes sense to pursue removal at all.’’ That is what the Court 

said about what the executive’s authority is today and always has 

been. Deferred action has been part of immigration law for decades. 

This is nothing new. 

And so, I guess the question for me is, if there is agreement that 

the Department has to make some decisions in terms of resources 

on what to do, given that the Supreme Court has said there is 

broad discretion to make decisions about what priority to make. Do 

you think somehow it is a violation if there is order put into those 

decisions by the heads of the agency for policy, or does this have 

to be left to officers without any kind of guidance to make that decision on their own? 

Mr. SCHROEDER. Not at all, Congresswoman, and I thank you for 

the question. As a matter of fact, if you think about it, if one of 

the rationales for granting deferred action are the equitable considerations that relate to the circumstances of the people affected by 

that decision, one of the things that is most inequitable to those 

people is the uncertainty of their situation, not knowing whether 
114 

somebody is going to come and take an action against them, being 

completely at sea as to what their status is. 

Now, that is the normal situation, but if you were going to take 

deferred action on the basis of a consideration of the equities of 

childhood arrivals, one of the things you would want to do is put 

their mind at ease. It would be part of the equity of the situation 

to do that. 

Ms. LOFGREN. Can I ask one further question because it is something, you know, I have often thought about. If you have this discretion, and you do according to the Court, is there not an equal 

protection issue here where if you have an officer in, you know, one 

part of the country saying we are going to exercise discretion for 

childhood arrivals, but an office in another part of the country saying we are not? Does that not call out for a policy decision on the 

part of the agency itself on what to do? Is there not an equal protection motivation there? 

Mr. SCHROEDER. One of the most fundamental principles of our 

jurisprudence equitable application of the law is that like cases be 

treated alike. And if you think the dominant explanation of your 

treatment of a group of people is shared by all of them, then you 

need to treat everybody alike. And a case-by-case approach to the 

problem, in fact, will not lead to that. 

Ms. LOFGREN. I see my time is up, Mr. Chairman. I yield back. 

Mr. GOODLATTE. The Chair recognizes the gentleman from Texas, 

Mr. Smith, for 5 minutes. 

Mr. SMITH OF TEXAS. Thank you, Mr. Chairman. Rather than 

ask questions, I have a brief statement to make, after which I yield 

you the balance of my time. 

‘‘Mr. Chairman, the Obama Administration has ignored laws, 

failed to enforce laws, undermined laws, and changed laws by executive orders and administrative actions. These include laws covering healthcare, immigration, marriage, drugs, and welfare requirements. Other presidents have issued more executive orders, 

but no president has issued so many broad and expansive executive 

orders that stretch the Constitution to its breaking point. 

As for not enforcing laws, in 2011, the President instructed the 

Attorney General not to defend the Defense of Marriage Act in 

court. This Monday, the Attorney General declared that State attorneys general are not obligated to defend laws they believe are 

discriminatory. At other times, the President has decided not enforce immigration laws as they applied to entire categories of individuals. And the President has decreed a dozen changes to the Affordable Care Act, known as Obamacare. But neither the President 

nor the Attorney General have the constitutional right to make or 

change laws themselves. That is what happens in a dictatorship or 

a totalitarian government. 

The President and the Attorney General do have a constitutional 

obligation to enforce existing laws. If they think a law is unconstitutional, they should wait for the courts to rule, but their opinion 

is no substitute for due process and judicial review. It is their job 

to enforce existing laws, whether they personally like them or not. 

Ours is a Nation of laws, not a Nation of random enforcement. 

To put personal preferences above democratically-approved laws 

reeks of arrogance and conceit, especially when citizens could be 
115 

penalized or jailed for not following those same laws. Officials violate the Constitution they have sworn to uphold if they ignore laws 

or counsel others to do so. 

Mr. Chairman, all true reform starts with the voice of the people. 

If American voters rise up and speak loudly enough, they will be 

heard in the corridors of the White House and in the halls of Congress.’’ 

Thank you, Mr. Chairman, and I will yield back. 

Mr. GOODLATTE. I thank the gentleman for yielding to me. And, 

Ms. Foley, in following up on the discussion that the gentlewoman 

from California just had with Mr. Schroeder, the argument is made 

that deferred action on a whole category of people, somewhere between half a million and a million people, is acceptable. Now, the 

principle on which that is founded is prosecutorial discretion. 

Has prosecutorial discretion such elasticity that an entire category of people could be recipients of deferred action simply based 

upon their being in the category when the Congress has on the 

books for many, many years laws signed into law by presidents of 

the United States, made it illegal for those people to be present in 

the United States? Are we not talking about here the exception 

swallowing the rule when you essentially carve out the vast majority of people in the category to have deferred action? 

Ms. FOLEY. Yes. I mean, this is sort of a dangerous and scary 

moment. That is not discretion. I mean, that is raw, lawmaking 

power is what that sounds like to me. Think about what discretion 

is. Discretion inherently by the executive is a case-by-case decision, 

just like a, you know, U.S. attorney makes discretions as to whom 

to prosecute first. 

And I believe Mr. Schroeder a second ago mentioned equity. We 

are trying to do equity here. Equity itself is inherently individualized. When courts exercise equity powers, the whole point of equity 

is to do an individualized case-by-case assessment as to what is 

right. That is not what President Obama is doing. He is not doing 

case-by-case assessment. He is doing entire categories with a giant 

magisterial brush. He is wiping out an entire category of people to 

whom the law applies. In my book, that cannot possibly be characterized as prosecutorial discretion. 

Mr. GOODLATTE. And there is a great debate going on here in the 

Congress right now about what the appropriate action is to be 

taken with regard to children brought here illegally by their parents. Is not the whole point of that if the Congress does not act and 

the President is impatient with that, does he somehow have the 

power to reinterpret the law and stretch the meaning of deferred 

proceeding to say, well, I am going to effectively create a new law 

by allowing 500,000 to a million people to remain here in a deferred action legal status that the law was never intended to provide for? 

Ms. FOLEY. Well, let us hope not, right? And I am sure if you ask 

the American people they would say that is not their understanding of what the President is supposed to do when he is 

charged under Article 2 with the faithful execution of law. 

And as Professor Turley pointed out a second ago, when the 

President does something like that where he proposes a legislative 

reform to a law to Congress and Congress discusses and debates 
116 

it extensively and rejects his proposal, and then he turns around 

and through, again, executive order as his own unilateral act decides to simply implement those reform proposals by himself without congressional authorization, that is the worst possible fact pattern. I cannot imagine that a court looking at that fact pattern 

would say, oh, that is just prosecutorial discretion. 

Mr. GOODLATTE. I thank the gentleman for yielding, and his time 

has expired. The gentlewoman from Texas, Ms. Jackson Lee, is recognized for 5 minutes. 

Ms. JACKSON LEE. Let me thank the witnesses who have taken 

their time to be here this morning. There is no doubt that each of 

you, scholars that you are, believe in your position and certainly 

are students of the Constitution. And I respect and appreciate that. 

I want to recount a comment made by some former senators who 

were at a program yesterday morning. And one said that she has 

no doubt that all Members who come here come here with a belief 

and an opportunity—excuse me—come here with a belief and an 

opportunity to do what is right. And I want to place that on the 

record. However I may disagree with Members’ approach, whether 

it be House or Senate, I cannot doubt their integrity and their belief. 

On the other hand, listening to the leader of this House, after 

making a commitment to comprehensive immigration reform, and 

we all were inspired by the collaborative nature of that discussion 

representing his conference, came back 5 days later and indicated 

that he could not go forward because of the lack of trust in the 

President of the United States. 

Now, I did not approve and felt there was a constitutional question on the Iraq War, and certainly as we proceeded and went beyond our seeming authorization, maybe the Afghan War. But I 

wanted to recollect as to whether or not during that timeframe we 

spent time introducing legislation that I hold in my hand. So let 

me quickly read one paragraph: ‘‘Whereas, because of President 

Obama’s continuing failure to faithfully execute the laws, his Administration’s actions cannot be addressed by the enactment of new 

laws because Congress cannot assume that the President will execute the new laws any more faithfully than the laws he already ignored, leaving Congress with no legislative remedy to prevent the 

establishment of what is, in effect, an imperial presidency.’’ If that 

is not over the top in a legislative document with no basis in form 

whatsoever. 

So I disagree with Professor Foley because in actuality, deferred 

adjudication, Mr. Schroeder, if you would, does give discretion. 

What it does is it puts in place a procedure for the dreamers to 

have a process of application. And the authorities, meaning the Administration, the executive branch, then makes an assessment of 

whether you are eligible. There is discretion. There is a framework. 

There is equal protection of the law. It is not a vast wave, a tsunami. 

And I am going to be posing a question, because I took down the 

words of Professor Foley that indicted dangerous and raw. Maybe 

Ukraine, maybe places that we have confronted in South Sudan or 

Sudan. But to suggest that we have a chief executive officer that 

is dangerous and raw, if I am correctly saying it. 
117 

So let me just pose this question to you. First of all, why are Republicans so insistent on deporting dreamers, so much so that they 

would distort the executive position the President and what ICE is 

doing faithfully, and, I believe, appropriately? And then why would 

legislation be introduced after a Member has indicated that a particular member of the public service is an illegal alien lobbyist, and 

finds no insult to that? I respect all of you here, and I respect my 

colleagues. But I raise a question of frivolity, legislative milk toast. 

Mr. Schroeder, would you comment on this question of raw and 

abuse of power, and as well the question of equal protection, and 

whether or not this is a broad sweep that should be subjected to 

a question of whether the President can be trusted, and whether 

or not, as I put in the record very quickly these numbers that I had 

on a sheet of paper. And I am going to let you start, Mr. Schroeder. 

Go right ahead until I find them, and I will just shout out in a moment. Thank you. 

Mr. SCHROEDER. Thank you, Congresswoman. Well, two basic 

points. One is I think trying to incorporate or encompass all the actions that have been discussed over the months in this general conversation about whether the President is discharging his duty or 

not ignores the fundamental point. You have to make individualized decisions that hold up the President’s action against existing 

statutory authority and discretionary function, and decide on a 

case-by-case basis whether or not the action is over the line or not. 

I believe that most of these actions are legally defensible as matters of the exercise of that discretion, but that is the analysis you 

have to go through. 

Let me just clarify the relationship of the immigration decision 

and the President’s authorities with respect to the Congress’ failure 

to pass the Dream Act, because a lot has been made of that. The 

Congress also did not pass the Anti-Dream Act. The Congress did 

not act in this area, so that left in place existing immigration laws. 

If the President’s legal authority after you debated and did not 

pass the Dream Act justifies the deferred action that was taken, it 

is only because it would have justified it if he taken it a year before, because he has never claimed anything more than to act on 

the basis of existing discretionary authorities in the immigration 

laws. 

Ms. JACKSON LEE. But is it raw? Is it power that is raw and dangerous? 

Mr. SCHROEDER. No, ma’am. 

Ms. JACKSON LEE. Is it, in essence, a violation of the equal protection law or anything other than other presidents have done to 

clarify policy? 

Mr. GOODLATTE. Regular order. 

Mr. SCHROEDER. Absolutely not. 

Ms. JACKSON LEE. Mr. Chairman, let me ask unanimous consent 

to introduce into the record very quickly as it relates to executive 

orders, President Clinton introduced 364, President Bush introduced 291, and President Obama 168 as of January 20, 2014. And 

I think that clarifies the record. 

Mr. GOODLATTE. If that is a document, without objection, it will 

be made a part of the record. 

[The information referred to follows:] 
118 

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120 

Mr. GOODLATTE. And the Chair recognizes the gentleman from 

Alabama, Mr. Bachus. 

Ms. JACKSON LEE. I thank the gentleman, and I yield back. 

Mr. BACHUS. Thank you. First let me ask you this, just following 

up on the gentlelady from Texas. It is my understanding that 

President Bush—George W.—and President Obama have used 

these executive orders quite frequently. Was that also true of President Clinton? From what she said, he actually issued more. I was 

thinking he had issued much fewer. 

Mr. SCHROEDER. Congressman, I do not have the numbers in 

hand. This is an authority that presidents have used across Administrations for decades, but I am not familiar with the numbers. 

Ms. FOLEY. And, you know, again I have stated publicly and in 

articles that we need to be clear that quantity has nothing to do 

with it. Presidents issue executive orders all the time, and you can 

look them up online. And if you look them up, it is routine things 

like creating this little group, this little commission to do this, you 

know, things that have to do with his independent Article 2 authority. So plenty of executive orders are perfectly constitutional, so it 

is not a numbers game. It is about the quality of what the President is doing. And that is the question: is this President doing 

things of a qualitatively different nature than his predecessors? 

Mr. BACHUS. All right. You are the Democratic witness, Mr. 

Schroeder. It is pretty true that what Professor Foley is saying. Is 

it not just the last two presidents that have sort of pretty much by 

executive order either refused to do what a statute said or not follow that statute? 

Mr. SCHROEDER. Well, I agree with the point that Professor Foley 

made. It is not the numbers, it is the quality. It is a longstanding 

practice. I think in the current executive order numbering system, 

we are in the 13,000’s. President Eisenhower issued an executive 

order establishing affirmative action and non-discrimination requirements of Federal contractors in the 1950’s. President Kennedy 

followed that up. So those were already in the 11,000’s. 

Mr. BACHUS. But in quality, is it getting worse? 

Mr. SCHROEDER. Well, there again, I cannot hazard a global assessment. I believe that if we are talking about the last three last 

presidents, with whom I have had some familiarity, and their executive order practice, I believe that the activity is fairly comparable 

across all three of those president. 

Mr. BACHUS. How about Mr. Turley? Do you agree with that? 

Mr. TURLEY. I agree, Congressman, with my colleagues that you 

cannot look at the raw numbers any more than you can look at raw 

numbers of bills passed to determine how effective a Congress is. 

You have to look at what is being done. And I do think that situation has gotten far worse in the last two presidencies. George W. 

Bush, I thought, was rightfully criticized for his signing statements 

where he adopted interpretations that seemed to be wholly at odds 

with what Congress had said. 

But this has accelerated under President Obama to a point that 

I think is alarming, that we can disagree with the policies with regard to the Dream Act. But Members of this body thought that 

they had a consistent rule. They rejected an Anti-Dream Act because they believed that the law itself should remain the same. 
121 

Now, we can agree or disagree with that, but the fact is what the 

President achieved unilaterally was precisely what he had been refused by Congress. And that has to raise separation issues of great 

import. 

Mr. BACHUS. Professor Schroeder, you have testified on this. You 

at least, I think, have represented yourself as somewhat of an expert on this. What is the most egregious example, in your mind, of 

an abuse by the President of an executive order? 

Mr. SCHROEDER. I thought that President Bush’s decision to authorize the NSA to engage in warrantless wire taps when there 

was pretty clear law on the books that the only two means that you 

in Congress had intended wire taps to be utilized was either 

through the normal criminal process or pursuant to a FISA warrant was a pretty egregious misuse—— 

Mr. BACHUS. Of course, you know the War Powers Act and national security are sort of carved out. The final question, if Congress were to bring action, how long would it take? I mean, the 

courts, they are sometimes so slow to respond, it is into the next 

Administration before you get an answer. 

Mr. SCHROEDER. Well, regrettably, Congressman, because I do 

not have anything against the effort by Congress to enforce what 

it believes are principles of right law, I think it would not take long 

because I believe the Court would throw it out quite quickly. I just 

do not think there is congressional standing in this area to entertain the kind of litigation that is being contemplated. 

The President would immediately reply, if he replied on the merits at all, by saying I am within my discretionary statutory authority. Then the court would be faced with answering a garden variety 

legal question about the application of law to certain facts that is 

just the kind of thing that it has said that this body, or the other 

body, or the two of you together does not have standing to litigate. 

So I just do not think these lawsuits will bear much fruit, regrettably, from the point of view of enabling you or others who advocate for the legislation to pursue that kind of litigation that Professor Foley advocates. It would take a dramatic change in the existing Supreme Court jurisprudence, which I do not see on the cars. 

Mr. BACHUS. Professor? 

Ms. FOLEY. It would not take a dramatic departure from existing 

precedent. Look, the Supreme Court has only decided two legislature standing cases other than Powell v. McCormack, which was 

not an institutional injury suit, it was a personal injury suit, when 

he was excluded from the chamber. 

So we have two cases. We have Coleman v. Miller, and we have 

Raines v. Byrd. Coleman v. Miller, there was standing for the legislators to bring an institutional injury suit. Byrd v. Raines, there 

was not. The reason is patent because in Coleman v. Raines, what 

you had was a group of Kansas State legislators. In fact, you had 

21 out of 40, a majority, of Kansas State legislators basically saying that the lieutenant government acted unconstitutionally when 

he broke a tie regarding that State’s ratification of a child labor 

amendment. 

The Supreme Court said under those circumstances we are convinced that both the institution, i.e., the Kansas Senate, has alleged an injury, an institutional injury, of sufficient magnitude that 
122 

it satisfies the injury requirements of standing. And second, we actually believe that this group of legislators is appropriately authorized. It does represent the institution as an institution because it 

is a majority of them. 

Now, compare and contrast that to what was going on in Raines. In Raines you had a group of six congressmen and senators who 

were challenging the constitutionality of the Line Item Veto Act. 

Basically you can see just by the way I have set up the fact pattern 

that this is a disgruntled group, a small group, of disgruntled legislators who believed that the law that their own colleagues just 

passed should not have been passed and was unconstitutional. 

There is no way the Supreme Court is going to uphold standing 

under those facts. 

If you follow the four-part test that I have laid out, you have a 

very good shot at standing. 

Mr. BACHUS. All right, thank you. 

Mr. GOODLATTE. The time of the gentleman has expired. The 

Chair recognizes the gentleman from Illinois, Mr. Gutierrez, for 5 

minutes. 

Mr. GUTIERREZ. Yes, thank you, Mr. Chairman, and welcome to 

all of you for testifying here. Unfortunately, everything you said 

will never translate into any legislative action as none of the people 

that spoke before you or any of the things that you said. This is 

political theater. That is why we are here. We are not here to really hear about your interpretations of the Constitution, as wise and 

as well founded as they are. Let us skip over the obvious. The obvious is we had some principles on immigration reform. We do not 

want to deal with them, so why do we not blame the President? 

So what we have here is another do-nothing hearing in a do-nothing Congress which will arrive at do-nothing legislation. 

Mr. ISSA [presiding]. Would the gentleman yield? 

Mr. GUTIERREZ. No, I have 5 minutes, and I know how serious 

you are about limiting people to their 5 minutes. 

Mr. ISSA. I was going to be kind. 

Mr. GUTIERREZ. Okay, then fine. [Laughter.] 

Mr. ISSA. I, for one, would like to testify that I am interested in 

a lot of other executive orders. I thank the gentleman. 

Mr. GUTIERREZ. Thank you. I hope I will get the extra 15 seconds 

back at the end. [Laughter.] 

And so, the gentleman says that that is what he has raised already. But, you know, Ms. Foley talked a lot about the Dream kids, 

and most of the conversation here has been about immigration. Let 

us not kid ourselves, right? And Obamacare, which they do not like 

obviously to begin with, so I am not sure why they are so angry 

about his delaying the implementation of a law they all voted 

against and detest. But here is another thing. They have a very 

clear policy on immigration, and they brought forward some principles. 

So why are we here? We are here because it is really a do-nothing Congress. And here is what they say to the President. They 

say, you know, the leaders of the do-nothing Congress, you know, 

they are really going to come after you, Mr. President, if you do 

something about immigration, if you dare be a do-something President because we want a do-nothing President to go along with the 
123 

do-nothing Congress, because that is what they said to us. They 

said, well, we have some principles, and they articulated those 

principles, and they brought those principles forward. 

And you know what they did? They elevated the debate. What 

happened as a result of that? I am going to tell you what happened 

as a result of that. I, the President, Nancy Pelosi, and everybody 

on this side of the aisle said, great, let us have that conversation 

and let us have that dialogue so we do not have a do-nothing Congress. 

Instead they want to talk about the dreamers, half a million 

young kids, right? Well, let me just tell you, Ms. Foley, you are 

wrong. There is prosecutorial discretion. Every last one of them has 

to pay nearly $500 in a petition before the government to get prosecutorial discretion. And while hundreds of thousands of them have 

received it, thousands upon thousands of them have been denied. 

It is on a case-by-case basis that it is done, just as it should be. 

It is not as though somebody waved the wand and said everybody 

who arrived here before they were 16. That is wrong. 

And let me just say something else. It is not that the Congress 

did not necessarily say let us not hurt the Dream kids. No, they 

affirmatively said in the House of Representatives that they should 

have a pathway to legalization, and they should have a pathway. 

That law was passed in the House of Representatives. And 55 senators said that the same thing should happen in the Senate. 

So let us make it clear, except, of course, they brought something 

up, cloture. I think that is in the Constitution. Yes, Thomas Jefferson, and George Washington, and Madison, they all brought up the 

rule of cloture. That is the way they stopped it in the Senate otherwise. 

And the thing is I do not know why they are complaining so 

much. While their principles were very good and very welcoming, 

and I was very happy to see them, do you know what they said 

about the Dreamers? They should get legal permanent residence. 

Do you know what that means? A green card. No fines. I read their 

principles very clearly, and they should have an immediate pathway to citizenship. So why are we not celebrating what the President did in that case? 

And then said they said the Hastert rule, the Hastert rule, the 

Hastert rule. Really? The Hastert Rule never really existed. Who 

says that? Dennis Hastert, the former Speaker of the House. That 

is what he says about the Hastert Rule. And moreover, the former 

Speaker of the House—I know we can be silly about this and laugh 

about this and make everything a joke, but it really is not because 

since you proposed those principles, this do-nothing President who 

does not enforce the law has deported 29,000 people. He detains 

more people than any President, over 400,000 a year. 

So let us not kid ourselves. There are hundreds of thousands, 

millions of American citizen children who every day are in fear of 

losing their mom and their dad. This is not a laughing matter 

where we can simply just laugh about it. There are Americans, 

American citizens, yes, born here in this very country. And I think 

we should take that seriously. But this meeting is not about that. 

It is about attributing some fault to the President of the United 

States. 
124 

You know, I can show you time and time again prosecutorial discretion. This is a letter, November 8, 1999, signed by Henry Hyde 

and Lamar Smith, along with dozens of other Republicans Members saying to then President Clinton, you are not using prosecutorial discretion, on what, on immigration. I would like to introduce 

it for the record, please, because I think that that is very, very important. 

Mr. ISSA. Without objection, it will be placed in the record. 

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Mr. GUTIERREZ. So what are we doing here? We are doing nothing. We have a problem in America, 11 million people. They need 

help. And you know what? You know what really, really hurt me 

the most was that we raised the expectation. We said to those people there is hope that, yes, the gentleman from California and the 

gentleman from Illinois, who many times do not get along on ideological issues, but maybe can find common ground on immigration 

issues. And, you know, when they said this is hard, when the 

Speaker said this is hard, I said, so what else is new. That is what 

we were sent here to do, hard things. If it were easy, they should 

have another group of people come here. 

And you know how they felt? They felt dashed. They felt destroyed. They felt disillusioned. And that is why I have to just say, 

listen, if you are not going to do anything, then do not tell the 

President not to do anything. Let him help—— 

Mr. ISSA. The gentleman’s time has expired by 1 minute and a 

half. 

Mr. GUTIERREZ [continuing]. So those dreamers do not have to 

have their moms and dads deported from this country. Let somebody do something on behalf of the American people and for the 

immigrants of this Nation. Thank you very much, Mr. Chairman. 

Mr. ISSA. I want to thank the gentleman. I now recognize myself 

in order. And I join with the congressman’s thoughts in one sense: 

Congress does need to act. But, Mr. Turley, I would like to leave 

that particular executive function aside and go to a couple of other 

questions, some of which I think have not been covered. 

Is it not true that every action of every confirmed individual— 

secretary of fill in the blank, EPA administrator, and so on. Every 

one of those individuals offered up and confirmed by the Senate for 

a Cabinet-level position, every time they say do something, even in 

an email, is it not effectively an executive order, not a presidential 

executive order, but an executive order of the executive branch 

duly distributed throughout authorized Cabinet positions. 

Mr. TURLEY. Well, I think it could be executive action. It certainly could be a policy. You are allowed to challenge under the Declaratory Judgment Act policies that are implemented sometimes 

outside of strict executive order. 

Mr. ISSA. Right. But the term ‘‘presidential executive order,’’ 

which the gentleman from Illinois was relatively animated about, 

these are a relatively few actions of the executive branch compared 

to the tens of thousands of actions that occur through the regulatory process, through guidance, and as much as possible 

through—and I will give you an example. And this is Article 3. I 

am sorry, it is still Article 2. The U.S. Attorney in the Southern 

District of California some years ago basically made a decision not 

to go after Coyotes, simply not to prosecute them, that it was not 

worth it. That is an order by an executive delegated down, is that 

not correct? 

Mr. TURLEY. It is, and one of the things I would point you to is 

that the Declaratory Judgment Act allows people to challenge acts 

and policies of the executive branch. The vast majority of those 

things are not technically executive orders, but they are executive 

action. They are policies. 
129 

Mr. ISSA. Right. So following up on, if you will, all of these actions which affect somebody somewhere or, quite frankly, the will 

of Congress as often signed by a President. You know, Mr. Conyers 

and I go back a lot of Congresses, so we may have passed something signed by a previous Congress. We may have signed something over the objection, the veto, of a president. But ultimately, 

laws have been passed, and they become the basis under which all 

executive action occurs. Is that correct? And I just ask is that true 

to both the other witnesses, that that is really the entire universe 

of what we are talking about, even though this hearing is pulled 

up to the level of the chief executive. But you all would agree that 

this is all executive action. 

Mr. SCHROEDER. Yes, I would agree with that. 

Ms. FOLEY. [Nonverbal response.] 

Mr. ISSA. Okay. Then let me ask the salient question that has 

nothing to do with immigration, but has to do with all of these executive orders, executive actions, rules, regulations, and the like. 

At current, the United States Congress has not formally given 

itself standing to intervene on a regular basis, going to Article 3, 

when they believe that an entity of the executive branch has failed 

to properly execute or even interpret existing law. Is that correct 

that standing does not basically exist? The courts have generally 

found that we have not given ourselves standing on behalf of the 

American people. Is that agreed by all three? 

Mr. TURLEY. Well, I would—— 

Mr. ISSA. I heard your answer, Ms. Foley, at one point. But, Mr. 

Turley, in general, if I were to object to the President’s executive 

order, or to Gina McCarthy’s at EPA action, I would not in the ordinary course have standing as an individual Member. Is that correct? 

Mr. TURLEY. As an individual Member. 

Mr. ISSA. And this Committee, if it were to find that the President’s actions were inconsistent with the Constitution or with existing law, they would not have predictable standing. 

Mr. TURLEY. That is where I would quibble a bit because I have 

long taken the view that Members do have inherent standing. And 

also we have had, particularly in subpoena cases where standing 

of Committees have been recognized. 

Mr. ISSA. No, and I have one out in Fast and Furious. Mr. Conyers had one in Harriet Miers. So we are two people who believe 

in Article 1 power. So let me ask the follow-up final question. It 

is only one question of this entire line. If we either or do not have 

standing, in your opinion, does the Congress have the ability 

through statute to give itself explicit standing to go to Article 3 to 

resolve such disputes as we shall determine in statute? In other 

words, by statute do we have the ability to give ourselves standing 

on behalf of the American people? 

And let us presume for a moment that the standing was based 

on a house, a house of Congress, as Mr. Conyers and I did each 

during our time, where only one house made a determination and 

was granted standing in the district court to have it decided. His 

was decided and mine is in the process of being decided. 

From a statutory standpoint, which is really the constitutional 

question, do you believe we have the ability to pass a statute which 
130 

would then explicitly give ourselves standing? And let us just use 

executive orders, even though I would anticipate that the regulatory process that often leads to regulations or rules which are inconsistent with our belief of what the law says. Do you believe we 

can give ourselves standing through statute explicitly? 

Mr. TURLEY. If the question is to me, I do believe that. Whether 

the courts would accept it—there is obviously hostility toward it. I 

would simply hasten to add that when you look at standing, you 

have to look at two different barriers that are presented by the 

courts. One is Article 3 cases, and one is called prudential principle 

cases. On prudential principles, this body can do a lot in advancing 

a claim of standing. In terms of the interpretation under Article 3, 

you cannot statutorily change the meaning of Article 3 as set by 

the Supreme Court. Only the Court can do that absent a constitutional amendment. 

Mr. ISSA. Okay. Well, I want each of you to be able to answer 

briefly. But you are both familiar, I presume, with the Harriet 

Miers, the Bates case, and now with Amy Berman Jackson, her decision to grant standing and to find that the executive branch cannot assert that the court, Article 3, lacks the ability to decide differences of opinion between our bodies. Would you then say that 

at least we have the ability to pass a statute, and that they would 

have to give it similar consideration? 

Mr. SCHROEDER. Well, purely as a predictive matter, no. I think 

you have drawn an apt distinction between the ability of this body 

to enforce its own internal legal processes against the executive. I 

would distinguish those situations versus a disagreement with the 

President over how the laws that apply to the citizens of the 

United States are being interpreted. But that is just my predictive 

reading of the cases. It is worth what you are paying for it. I mean, 

ultimately it is going to be decided by a court, and whether the 

three of us agree or disagree, is not going to—— 

Mr. ISSA. But you would agree, and, Mr. Gohmert, I will go 

quickly to you. I apologize. You would agree that it is only a question of standing because ultimately it is a question of whether you 

are an injured party and have standing, and whether or not each 

of us representing 700,000 people and collectively representing 318 

million people, have standing on behalf of one or more of those people that may be affected. That is the only question before the 

Court. 

Mr. SCHROEDER. Right. Ultimately a question of standing, there 

are two problems. One is the peculiar jurisprudence with respect 

to the legislature suing. I read those cases to say essentially the 

lawsuits are allowed when it is a question of process. Is there some 

ambiguity in the process by which a law is being followed through 

the tracks to get to enactment or not that is ambiguous to justify 

a lawsuit? So can the lieutenant government in Kansas be involved 

in a constitutional amendment decision, or does the Constitution 

prohibit that, and it made a difference as to whether the resolution 

was adopted or not? 

Mr. ISSA. Thank you. Mr. Gohmert, thank you. You are recognized. 

Mr. GOHMERT. Thank you, Mr. Chairman. And, Mr. Chairman, 

I am going to follow up on your questions. I am just going to read 
131 

from Article 3, Section 1, so we all know what we are talking 

about. ‘‘The judicial power of the United States shall be vested in 

one Supreme Court and in such inferior courts as the Congress 

may from time to time ordain and establish.’’ Congress has the 

power to create district courts. If we want to create more district 

courts, we could do so. Does everybody agree with that? 

Mr. SCHROEDER. Yes. 

Ms. FOLEY. Absolutely. 

Mr. GOHMERT. And we have the power to create more Federal 

circuit courts, Federal appellate courts, if we wish, correct? 

Ms. FOLEY. Yes. 

Mr. GOHMERT. We have the right to eliminate district and appellate courts, correct? 

[Nonverbal response.] 

Mr. GOHMERT. You all are nodding your heads. I take that as an 

affirmative answer. 

Ms. FOLEY. Yes. 

Mr. SCHROEDER. Right. There is a little problem at the margins 

about totally denying a remedy of a citizen for due process or other 

constitutional problems. But absent that, yes. 

Ms. FOLEY. And assuming concurrent jurisdiction by state courts, 

you would not have a due process problem. So, yes. 

Mr. GOHMERT. Well, but actually there is only one court we cannot eliminate, and that because it is created in the Constitution, 

and that is the Supreme Court, correct? 

Ms. FOLEY. Correct. 

Mr. SCHROEDER. Right. 

Mr. TURLEY. Although you do have the power to add members 

to that Court. 

Mr. GOHMERT. Yes, we do have the power to add members to 

that Court if we wish. I agree with you, and that has been tried, 

and I am glad it was not successful. 

But I come back to this: if we have the power to create courts, 

whether we call them district courts, or immigration courts, or tribunals, or whatever inferior courts that we choose to create, then 

following up on Chairman Issa’s question, why would we not also 

have the power to say what standing would be allowed in the court 

that we create? Any of you. 

Ms. FOLEY. Well, actually I think it is because the relevant language of the Constitution is not Article 3, Section 1, but Article 3, 

Section 2, which extends the judicial power to certain cases and 

controversies, including cases that arise under the Constitution, 

treaties and laws of the United States, and cases between citizens 

of diverse States. So in interpreting—— 

Mr. GOHMERT. But if we eliminate every court but the Supreme 

Court, which we can do, and let them hear the Section 2 issues, 

then we should be able to create courts and say these courts will 

give standing to these litigants. We do that with immigration 

courts. We have done that with Uniform Code of Military Justice 

creating military courts or courts martial. So I know very intelligent people get to argue, well, you have the language of Coleman, and then the Raines position and all. 

But I am saying if you stand on the Constitution alone, I do not 

understand how Congress would not have power to say we are cre-
132 

ating these district courts, and you will give standing to Members 

of Congress, whether it is one who voted for or voted again a bill, 

or whatever. Whatever we chose to say, these have standing, understanding that we cannot change the powers of the Supreme 

Court to hear the things in Section 2. 

Just because the Supreme Court has the power to hear the 

things in Section 2 does not mean that every court we create has 

to hear all of those things in Section 2. Is that not correct? Otherwise, we could not create immigration courts, or courts martial, or 

district courts, correct? 

Ms. FOLEY. With respect, I think you are actually incorrect about 

this, and let me just briefly explain. The courts that you are referring to are non-Article 3 courts. You are right in the sense that certainly constitutionally only the U.S. Supreme Court has to exist. 

What would happen if Congress exercised its power to—— 

Mr. GOHMERT. What power do we have to create courts other 

than Article 3? 

Ms. FOLEY. Correct. 

Mr. GOHMERT. I know we have power over immigration and 

things like that under Article 1. 

Ms. FOLEY. Article 1. 

Mr. GOHMERT. But under Article 3 is where we derive our courts 

power, correct? 

Ms. FOLEY. Right. So let us say Congress used its power and 

eliminated all district courts and U.S. courts of appeal, as you are 

hypothesizing. What would happen? What would that world look 

like? Would the U.S. Supreme Court be able to hear direct, immediate trial, essentially, of congressional standing? And the answer, 

I think, has to be no. 

I hope everyone on the panel will agree with me here because 

under Article 3, Section 2, the Supreme Court has original and appellate jurisdiction. It only has original jurisdiction under Article 3, 

Section 2 for a very narrow category of cases. 

Mr. GOHMERT. That is correct. 

Ms. FOLEY. And what you are hypothesizing would not be an exercise of appellate jurisdiction, but original jurisdiction. And this 

standing lawsuit that you are hypothesizing would not be an exercise of appellate jurisdiction, but original jurisdiction. For example, 

Article 3, Section 2 says the Supreme Court has original jurisdiction over cases involving ambassadors, public ministers, and consuls, I believe, and that is it, right? Is there anything else there 

that I am missing? That is it. 

Mr. GOHMERT. Well, I could read it to you, but my time has expired, and I am still looking for an answer to my question. 

Ms. FOLEY. So, no. So the answer would be, no, you could not 

eliminate the courts and allow the Supreme Court to hear—— 

Mr. GOHMERT. I am not wanting to eliminate any courts. I am 

saying that by implication, if we can create a court, we can also 

create that court’s jurisdiction, understanding the limits of Section 

2 for the Supreme Court. 

Ms. FOLEY. And I am respectfully disagreeing because under the 

Constitution, the Supreme Court can only hear original jurisdiction 

cases as a trial court in very narrowly-defined categories. It otherwise can only exercise—— 
133 

Mr. GOHMERT. You are still talking about if we eliminated all of 

the courts, and I am not talking about that. I do not want to eliminate the courts. I am talking about the power of Congress, if we 

have the power to create a court, then we have the power to say 

which courts will hear which disputes. 

Ms. FOLEY. And I am telling you that I do not think that is correct. 

Mr. GOHMERT. We could divide up the district courts and say 

these can hear these disputes, these can hear these disputes, correct? 

Ms. FOLEY. No, only for non-Article 3 courts. 

Mr. GOHMERT. We do not have power to say what the jurisdiction 

is of a district court—— 

Ms. FOLEY. No, you have—— 

Mr. GOHMERT [continuing]. And that they will have jurisdiction 

to hear appeals from bankruptcy court? We do not have the power 

to say that? 

Ms. FOLEY. If you are asking the basic question could you give 

standing to an Article 3 court, a lower Article 3 court now that you 

are not hypothesizing—— 

Mr. GOHMERT. Well, you said no when I said—— 

Mr. ISSA. The gentleman’s time has expired. 

Ms. FOLEY. The answer I gave was no. 

Mr. GOHMERT. Well, she said that I was wrong about an issue, 

and I want to establish that when she said I was wrong about us 

being able to split up the district courts and give some district 

courts some authority, other district courts other authority, we 

have the power to do that. And when you said I was wrong, you 

were inaccurate. You were going back to your assessment over 

standing, correct? 

Ms. FOLEY. I am sorry. I must have misunderstood your question. However, if you are asking can the Congress give jurisdiction 

to the court to establish standing, the answer is clearly no. 

Mr. GOHMERT. I asked does Congress have the power to divide 

district courts—— 

Mr. ISSA. Would the gentleman yield the time he does not have 

for just a moment? 

Mr. GOHMERT. Sure. 

Mr. ISSA. Under Justice Breyer, the Fed Circuit was created to 

hear appellate of patent and trademark. And Justice Breyer has 

very publicly said that perhaps he should have created special 

courts, Article 3 courts, to consider them. So would it be reasonable 

to say, on behalf of Mr. Gohmert, that that type of decision of what 

kinds of cases go to what kinds of courts and what appellate process is at least proven in the case of the Fed Circuit to be in law 

and well recognized? 

Ms. FOLEY. That is correct, but I understood that the congressman was asking could you give the court standing. And the answer 

would be no. 

Mr. GOHMERT. Well, I have moved onto other questions. 

Mr. ISSA. And we will now move onto the gentleman—— 

Mr. GOHMERT. And I appreciate the Chairman’s indulgence for 

giving me almost as much time as he took. 
134 

Mr. ISSA. No problem at all. Mr. Poe will forgive you in time. The 

gentleman from Texas is recognized. 

Mr. POE. Thank you for being here. I enjoy and think it is quite 

worthwhile for us to engage in conversation about the Constitution. 

We ought to do more about that. 

I want to cut to the chase. The Congress has given under the 

Clean Water Act, if I understand it correctly, a cause of action to, 

let us say, environmental groups under the Clean Water Act so 

they can go to court. What if we use that same analogy—I am not 

talking about standing—cause of action. Congress receives under 

legislation a cause of action to sue under the concept of a violation 

of the law regarding this issue of executive orders. I did not frame 

the question very well, Professor Turley, but you could frame it better and then answer it for me. 

Mr. TURLEY. No, it is framed perfectly well. And the problem is 

that unfortunately all these roads end up back at Rome. You know, 

you can create those causes of action. You can create what are 

called private attorneys general in statutes like the Clean Water 

Act. But the Court has placed an overlay on that question that said 

even if you satisfy the standards of the statute, you must still establish for us that we have Article 3 standing. 

Now, I think that the Court has really made a mess of this in 

that it is almost incomprehensible as you look at all these cases of 

what they are meaning, including the recent Windsor decision, 

which was splintered all over the place on standing. And I am still 

not quite sure what Justice Kennedy ultimately found standing on. 

But I will note that standing was found by Members of Congress 

in the Blagg organization, and that was from one house. 

So the answer is the Supreme Court has said no matter what 

Congress does, we have to be satisfied that there is a case or controversy under Article 3. Now, to make things even tougher, because of Marbury v. Madison, the Court has always said we alone 

are the final interpreter of Article 3. So the end result is what they 

say Article 3 is is what Article 3 is until we can get them to change 

their minds. 

But what Congress can do is to maximize the ability to get 

standing under an alternative basis, which is called prudential 

principles. Now, that will not negate the Article 3 limitations, but 

the Court has recognized that it can grant under prudential principles standing. And notably in the Windsor decision, the Court did 

say that they felt that really they had to grant those because of the 

abandonment of the defense of the statute—in this case, DOMA— 

by the Administration. And they needed to guarantee an adversarial process. 

Mr. POE. I have two more questions, so I had better make them 

quick. I do think, however, on the cause of action that may get us 

to the courthouse front steps as opposed to not even getting there. 

Same situation is going on. I mean, Congress has become, I think, 

because of the executive orders, you know, the whim of this Administration. It could be the whim of any Administration of whether 

they are going to ignore the law or write its own law. 

Let us switch to the judiciary branch, which is supposed to be 

the weakest branch of government if I remember my constitutional 

law history that you all taught us. What if the judicial branch in 
135 

a lawsuit, hypothetical lawsuit—you all love hypotheticals—the judicial branch, the Supreme Court rules that the Administration 

cannot do this, and the Administration ignores the judicial ruling 

of the Supreme Court. Oh, I am going to use my pen and phone 

and just ignore the judicial ruling of the Supreme Court. What is 

their remedy? If we do not have a remedy, what is the Supreme 

Court’s remedy? 

Mr. TURLEY. Well, of course, that is the question that I believe 

President Jackson asked when he asked where is your army to the 

chief justice of the United States. 

Mr. POE. You made your ruling, now you enforce it. 

Mr. TURLEY. That is right. And so fortunately, this country has 

been committed to the rule of law, and presidents have rarely 

taken that position. In terms of the enforcement, it would be left 

to Congress that has the most direct ability to combat the other 

branch. 

And, you know, Madison assumed that in these fights, the 

branches would jealously protect their own authority, but they 

would be equally worried about authority being taken from another 

branch by a third branch because they want to prevent the concentration of authority. 

Mr. POE. Last question briefly. You mentioned impeachment in 

your written testimony, Professor Turley. Quick comment about 

what you think that might be as an alternative. 

Mr. TURLEY. You know, I testified at the Clinton impeachment 

and I was the lead counsel in the last judicial impeachment, so I 

am very leery of even mentioning that word. 

Mr. POE. But you did. [Laughter.] 

Mr. TURLEY. Well, the reason I did is because courts routinely, 

almost as a mantra, refer to the power of the purse, legislative 

oversight, and impeachment when they say checks and balances on 

the President. I don’t believe impeachment is a solution here because courts have really enabled the President in this sense by creating ambiguous standards where he can claim that he believes he 

is acting within the law. 

But more importantly, we will be in seriously bad shape if impeachment is the only remaining check and balance. It is like running a nuclear plant with an on/off switch. We cannot do it, and 

it will not bring stability to our system. 

Mr. POE. Thank you very much. I yield back. 

Mr. GOODLATTE [presiding]. The Chair recognizes the gentleman 

from Pennsylvania, Mr. Marino, for 5 minutes. 

Mr. MARINO. Thank you, Chairman. Welcome, everyone. It is 

good to get involved and engage in this debate. 

First of all, let me preface my statements and my questions by 

saying I am displeased with executive orders that past presidents 

have executed, Republicans and Democrat, but I was not in Congress at the time. I am in the Congress now, and I am very displeased with what is taking place in the executive branch. 

Professor Schroeder, you are one of three authors in Keeping 

Faith with the Constitution. And I have not read the entire book, 

but I have looked through passages of it, and I was impressed by 

what the three of you agreed to. And I am just going to cite some 

things here. 
136 

It says, ‘‘The authors have described what they call constitutional fidelity, a principle that serves not only to preserve the Constitution, meaning over time—but here is the line I think is critical—‘‘but also to maintain its authority and legitimacy.’’ And there 

is no doubt in my mind that from the heart and soul that you mean 

that. 

I do have concerns about at what point do you draw the line at 

discretionary implementation of the law? I was a prosecutor, a Federal prosecutor, and a district attorney for 18 years, and I know the 

authority that I had. But that authority was based on that precise 

case given the fact that there were specific instances or lack thereof 

that would determine whether I would prosecute or not prosecute. 

Are you saying that the President has the authority to elevate that 

in a broad stroke? For example, do not pick up illegals or detain 

them coming from the President to the Attorney General. Do not 

implement parts of the healthcare program. The Attorney General, 

which I am sure was through the direction of the President, telling 

States’ attorneys general not to enforce certain laws if they do not 

like them. 

So, sir, I ask you, where do you draw the line, and that is a 

broad group, not a specific case. I took an oath as a prosecutor, but 

it was all based on specific facts, the facts of that particular case. 

So could you please address that, where you see the distinction? 

Mr. SCHROEDER. Well, Congressman, thank you. I certainly agree 

with you entirely that when you are sitting as a prosecutor and a 

case file comes before you or you have got to make a judgment in 

consultation with an FBI agent or other law enforcement agent as 

to whether is sufficient evidence to proceed, you may make a judgment on an individual basis, well, I think there is sufficient evidence to proceed, but I would rather put the office’s priorities someplace else. That happens inevitably on a case-by-case basis. 

But presidents and attorneys general make these kinds of decisions all the time. Look what happened after September 11th. The 

entire FBI pivoted to combat terrorism. They converted thousands 

and thousands of agents into counterterrorism agents. The JTTFs 

and the U.S. attorneys’ offices in all of the hot spots that people 

were worried about—— 

Mr. MARINO. I was part of—— 

Mr. SCHROEDER [continuing]. Focused like a laser beam. At the 

same time that was happening, other crimes, and people have criticized the Department for this. White collar crime prosecutions went 

way down. All kinds of prosecutions that before the FBI was investing resources in investigations that would lead to prosecutions 

were neglected. Those kinds of reallocation decisions are made all 

the time. 

Mr. MARINO. Yes, but that is where I disagree with you. They 

were not neglected. Priorities were established. 

Mr. SCHROEDER. Priorities were established, exactly. 

Mr. MARINO. But they did not say I am not going to prosecute 

these white-collar crimes because I do not believe they should be 

prosecuted. So are you going to allow the Attorney General or the 

President or states’ attorneys to say, okay, I am not going to prosecute sex crimes when it involves a 16-year-old and an 18-year-old 

because I think the 16-year-old is capable of making that decision? 
137 

That is not the intent behind that. And the President and the attorneys general are just as responsible for criminal laws and civil 

laws, not painting it with a broad brush. 

There was a statement that you made in your opening statement, 

or at least when I read through this, you said, ‘‘While I have not 

examined all the statutes relevant to the recent Administration’s 

actions on this point, I am not aware of any statutory restrictions 

on enforcement discretion that bear on those actions.’’ My question 

to you is then how can you come to the conclusion that you have 

without exhausting all the relevant recent Administration actions. 

That would be like you saying to a law student who you ask a 

question, and they gave you an answer. And you asked them, well, 

did you forget about this particular research? Well, yes, I did. Well 

then, I do not want to hear your answer. 

Mr. SCHROEDER. Congressman, I agree with you entirely. I did 

not intend to, and I hope I have disclaimed appropriately, I do not 

mean to here offer you a final definitive legal conclusion on any of 

these actions. Some of them may be without the boundary. I was 

trying to indicate in my testimony that they have plausible justifications rooted in traditional exercise of prosecutorial discretion 

and understandings of the appropriate statutes. We would have to 

dig into them to see if those justifications are warranted. 

Mr. MARINO. Okay, and I accept that, and I thank you. I like 

that response, and I do appreciate that response. So Has my time 

run out? I am color blind. I cannot tell what is going on over there. 

All right. I guess my time is up. Thank you so much. I yield back. 

Mr. GOODLATTE. That is the best excuse I have heard so far. 

[Laughter.] 

VOICE. I am going to use that. 

Mr. GOODLATTE. So for any other Members of the Committee 

that are suffering from this same affliction, the red light is the one 

on the left. [Laughter.] 

But the Chair now recognizes the gentleman from South Carolina, Mr. Gowdy, for 5 minutes. 

Mr. MARINO. I have a little dyslexia, too. 

Mr. GOWDY. Thank you, Mr. Chairman. I want to take a quick 

survey of executive power for those that are watching from home 

and hope that my old con law professor is watching from whatever 

nudist colony he retired to. [Laughter.] 

A president can veto legislation for any reason or no reason. A 

President can, through his or her attorney general, fail to defend 

the constitutionality of a law or portion thereof, even if that same 

president signed the very law into existence. A president can invite 

suit against a law and then fail to defend its constitutionality. A 

president, under some curious definition of prosecutorial discretion, 

can fail to enforce certain laws, even though money has been appropriated and there has been no challenge to its constitutionality. 

And Professor Schroeder used a new test called good faith, which 

I have not heard previous to today. That, in essence, Mr. Chairman, is a second veto, but it is more insidious than the first veto 

because now you can pick certain portions of a law and enforce it 

and ignore other portions even if the bill was only passed because 

of a compromise between competing positions. The president can 

pardon offenders even before they are indicted or prosecuted. And 
138 

individual Members of Congress have no standing under Raines. 

We may or may not have standing under Coleman based on vote 

nullification and institutional standing. 

So, Mr. Schroeder, it seems to me that if you like part of a law, 

enforce it. If you do not, do not enforce the rest. You used the 

phrase ‘‘good faith.’’ I want to ask you this: what is the mandatory 

minimum for possession of 5 grams of cocaine base? 

Mr. SCHROEDER. I do not know, Congressman. 

Mr. GOWDY. It is 5 years, and it is set by statute. So the judicial 

branch has to follow that. The judicial ranch would never entertain 

the thought of saying even though there is a mandatory minimum, 

we are going to ignore it. So tell me how the Attorney General can. 

Mr. SCHROEDER. Well, Congressman, I think a lot of the discussion about non-enforcement of the law is focusing too much on the 

donut hole and not enough on the donut. 

Mr. GOWDY. With all due respect, Professor, you talked about immigration, and you talked about healthcare. I am talking about 

mandatory minimums. They could not be more clear. The legislative branch has the power to set the minimum and the maximum. 

And rather than this Attorney General doing what he should have 

done, which is say, you know what, I disagree with the law, I am 

not going to enforce any narcotics laws because all 50 States have 

concurrent jurisdiction in narcotics, he wants the best of all worlds. 

He is going to continue prosecute narcotics cases, just not tell the 

court what the drug amount is, thereby getting around the law. 

How does he do that? 

Mr. SCHROEDER. Congressman, I am sorry. I am not familiar 

with that decision that the Attorney General made that you are describing. I would be happy to take a look at it. 

Mr. GOWDY. Trust me. Even though I am a lawyer, trust me. He 

has said he is not going to inform the courts anymore about the 

drug amount because he disagrees with mandatory minimums. 

How is that the proper exercise of prosecutorial discretion? That is 

rewriting the law, Professor. 

Mr. SCHROEDER. Congressman, I would very much like to be able 

to answer your question. I am not going to be able to answer it 

until I look at the specifics of the situation. I just apologize for not 

being that thoroughly versed on this particular issue. 

Mr. GOWDY. All right. Well, let me ask Professor Turley. If he 

can do that with drug laws, why can he not do it with election 

laws? 

Mr. TURLEY. Well, I think that it really does hit the nail on the 

head. I mean, the problem with the Administration’s argument is 

that it just simply proves too much. It would effectively make all 

of the separation of powers principles discretionary. And I do not 

see how you could possibly ascribe that purpose to a group of men 

who were remarkably pragmatic and practical. These are people 

that spent a lot of time trying to create balances and checks between the branches. 

This is the last group of people that would say, you know, we 

have this massive apparatus in Article 1 and Article 2 and Article 

3. But in the end, it really will come down to the President making 

this decision. These are the last people that would say that. 
139 

And I also believe they would feel the same way about the idea 

that we have plenty of cases now where the Court seems to say virtually no one has standing to bring up a constitutional violation. 

That is the reason I think a lot of the solution is right here in front 

of this table. Members of Congress are a relatively small group of 

people that, in my view, have all the elements of people that should 

have standing. We usually limit standing to parties that can 

present the best case, the ones that have the greatest interest. 

When it comes to separation of powers, these Members have the 

greatest interest. They have skin the game. 

Mr. GOWDY. I think the Court signaled that in Raines. The Court 

said this in dicta. We attach some importance to the fact that the 

House has not authorized this group to represent them, which I 

read to mean that perhaps if the House does authorize a group to 

represent them, and that is in Raines, not in Coleman. I know I am almost out of time, Mr. Chairman. Can I ask Professor Foley one question? It is quick, I promise. 

Mr. GOODLATTE. Without objection, the gentleman is recognized 

for 1 additional minute. 

Mr. GOWDY. What happens if there is a technical violation of Miranda? Even though you got the right person, you know they committed the crime, but the police just failed to say, you know what, 

you can stop answering questions any time you want? What is the 

remedy for that for those watching at home? 

Ms. FOLEY. The exclusionary rule. 

Mr. GOWDY. Right, even though we have got the right person. In 

other words, to Professor Turley’s point, I like the policy, but the 

process you used is wrong. And it is the same with 4th Amendment, and it is the same with the 5th Amendment. We are going 

to kick out evidence, and we are even going to let people we know 

are guilty go because we value process, and the end does not justify 

the means. 

So to your point, Professor Turley, that you agree with the policy, 

but you dispute the method by which this Administration is achieving it, I salute you, and I wish more of my colleagues cared enough 

to do the same. And with that, I would yield back. 

Mr. GOODLATTE. The Chair thanks the gentleman, and recognizes the gentleman from Idaho, Mr. Labrador, for 5 minutes. 

Mr. LABRADOR. Thank you, Mr. Chairman. And actually to follow 

up on this last comment from Mr. Gowdy, Mr. Turley, I appreciate 

you being here, and I appreciate the courageous stance that you 

have taken. In fact, I found it interesting after your last testimony 

the last hearing that we had how much you got attacked in the 

media. And I want you to explain what you went through because 

there was even a moment where actually a reporter who is here 

today just went off about the impeachment part of our hearing 

when there was only maybe one sentence uttered about impeachment in an entire 4- or 5-hour hearing. Could you go through a little bit? 

Mr. TURLEY. Well, there was certainly a lot of anger, and I am 

just talking about within my family. [Laughter.] 

I come from Chicago, a really staunchly Democratic and liberal 

family, so it has been months since I returned to the house. The 

fact is I realize that this is an area fraught with passions and poli-
140 

tics and people feel very deeply about it. Many people feel that I 

have, you know, sort of betrayed folks that I usually work with. 

And in all truth, even though I have written and taught about 

separation of powers for many years, I have to admit that on some 

occasions when President Obama has done things that I liked—and 

I will list one, you know, the greenhouse gas regulations—I privately was glad he acted, and then I had to sort of catch myself 

because I did know that Congress had rejected some of those measures. And what is being implemented is a massive new regulatory 

scheme. 

And the fact is, even though I agree with the President in that 

area, this is a prototypical example of something that Congress 

needs to weigh in. And all of the passions that we have seen here 

is precisely why this is the institution that has to make the decisions. It is not enough to say I agree with what he has done, and 

it is certainly not enough to say this would not have happened if 

you had just done what the President told you to do. 

Mr. LABRADOR. Which is what I am hearing here. I have heard 

Mr. Schroeder say it. I have heard several of my colleagues say 

that if you would have done what the President told you to do, he 

would not have needed to act in the manner he acted. That, to me, 

sounds so dangerous. Why do you think, Mr. Turley, that that is 

dangerous for the future of this country? 

Mr. TURLEY. Well, what I would say to those that I often work 

in the environmental field and other areas where I happen to agree 

with the President, I believe that in time people will loathe the day 

that they remained silent during this shift of power. There will be 

a future president you do not agree with. And just as some laws 

are being negated or delayed or nullified today, the next round of 

laws may be something you care more deeply about, and that is 

what the framers warned us about when they said we are giving 

you not solutions. We are giving you a process, and this is the allterrain vehicle of constitutional systems. It has been through everything. 

It is not a particularly beautifully written Constitution. Anybody 

who has said that has never read it. It was written by a wonk. You 

want a beautiful Constitution? Read some of the French constitutions. There are lots of them because they failed repeatedly. Our 

Constitution was written by practical people, and it has served us 

well. I do not think it is asking a lot of this institution to pass 

along that Constitution in the same shape that you inherited it. 

Mr. LABRADOR. Ms. Foley, you spoke one moment about the dangerousness of the magisterial power, and I do not think people understand what that means when you talk about a magistrate. What 

is the difference? Why is it dangerous to actually have magisterial 

power? 

Ms. FOLEY. Well, I mean, it is basically, you know, why we revolted against Great Britain, you know. We were concerned that we 

had a monarch who basically could suspend our laws and do what 

he wanted to do. When you get to the point where the only limitation on the President’s, or the only definition of the President’s, 

duty to faithfully execute the laws is what Mr. Schroeder suggested, which is sort of an overarching idea that the President has 

to act in good faith, I do not know what that would mean. I have 
141 

no idea how anyone would enforce that. And what that is is, you 

know, effectively having a monarch. 

Mr. LABRADOR. Which is the danger of this. And, in fact, I believe—I have been a Member of the Tea Party. I think the Tea 

Party arose because there was a frustration with not having spoken up during the Bush years. And many people who were upset, 

like myself, that we did not say enough because Bush over exerted 

his constitutional authority. And we actually stood silent because 

it was our President who was doing it. And I think it was not necessarily an attack on the new President. It was a frustration that 

many of us had that we did not say enough, and I think that is 

why many of us are saying now. 

One last question for Ms. Foley and Mr. Turley. Can you please 

explain, because I have heard again and again prosecutorial discretion? And apparently there seems to be a misunderstanding of 

what prosecutorial discretion is. The people on the other side seem 

to think that if the Administration just decides there are three or 

four things that they have to comply with, then that is prosecutorial discretion. That is not the way I understand it. 

Ms. FOLEY. It is not the way I understand it either because think 

about what the President has done in the Dream Act situation, 

right? He has created a whole new category of people who are not 

deportable. And basically what this is, it operates as a blanket 

waiver for these particular people. And I believe it was Congressman Gutierrez when he was here earlier, he was the one who made 

the point that, you know, this is a case-by-case adjudication. Well, 

it is only case-by-case if what you mean is that the President’s people are checking to make sure that the President’s boxes are 

checked. That is not what most people think of when they talk 

about prosecutorial discretion. 

Mr. LABRADOR. Mr. Turley? 

Mr. TURLEY. I have to agree with that. And my problem with the 

argument of prosecutorial discretion is that when I listen to the arguments, my question is, if that is prosecutorial discretion, what is 

not prosecutorial discretion? It would seem like everything would 

be prosecutorial discretion. 

Now, we can call a raven a writing desk. We can use whatever 

terms we want. But I cannot see how what is clear acts of circumvention of Congress can simply be forgiven in the name of prosecutorial discretion. 

Mr. LABRADOR. Thank you very much. I yield back my time. 

Mr. GOODLATTE. The Chair thanks the gentleman and recognizes 

the gentleman from Iowa, Mr. King, for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. I thank the Chairman for 

holding this hearing. I would point out as I observed the first four 

witnesses, they are Republicans, and I had also observed that likely there was an offer made to the minority party to bring a Member forward that might have had some legislation to protect this 

Constitution. But I am sure they would have voiced that concern 

if they had had someone to offer. 

But here as I listen to each of the presenters of the Members 

who have drafted legislation to fix this issue, I was engaged by 

each one of their testimony and their presentation. But when I got 

down to the end of it, I had to kind of do an exhale of despair be-
142 

cause it circled back around to Congress passes another law that 

tells the President to now follow and obey a new law. 

And so, it should be obvious to all of us by now that there is unlikely any law that we could possibly pass here in the Congress 

that is going to compel the President to enforce it unless it is to 

his political interest to do so. And I will say that is one thing that 

we can count on the President to do with regard to keeping the portions of his oath, and that is if it is in political interest and his 

philosophical interest, he will enforce it. If it is not, then he will 

look at the consequences, which might be a public pushback of 

great enough magnitude that it could be embarrassing. 

I think one of those points would be when in Obamacare, the 

conscience protection did not adequately protect, especially the 

Catholic church, but our religious institutions, and he was compelling them to provide contraceptive, abortafacients, and sterilizations, which was a direct violation of the principles of not just the 

Catholic church, but many other religious institutions. And individuals should stand in the same shoes, by the way. 

And so, the President did a press conference at noon on a Friday 

and he said, well, now I am going to make an accommodation to 

the religious institutions, and I am now going to require the insurance companies instead to provide these services—he called them 

services—for free. He repeated himself, for free. And if you scoured 

the rule that was written by Sebelius’ HHS, there was not a letter 

changed in that rule. The President had spoken orally in a press 

conference, and the insurance companies lined up to do his will and 

his bidding. That was a chilling thing to witness as a sworn to oath 

to protect the Constitution Member of Congress. 

So all of this that we might do to pass legislation is not the answer. Things we might to do to cut off funding leaves us vulnerable 

to, oh, intradepartmental transfers of appropriations or even interdepartmental transfers of appropriations. That threshold is the patience of the public. And now we are talking about going to court 

and figuring out how to get standing because maybe Article 3 will 

save us. Well, they are the creatures of Congress. We could abolish 

them, I suppose, if they do not do the will and the bidding of Congress, everybody but the Supreme Court. 

But in the end, what if the President has the same level of disrespect for Article 3 as he does for Article 1? What if he wraps himself in the cloak of ‘‘I have spoken and there is nothing you can do 

about it?’’ And we have used the ‘‘I’’ word here, and we know that 

it is an impractical tool in this room. I was not a Member of Congress, but I know exactly where I sat back there behind David 

Schippers when he delivered the summary of the prosecution in the 

impeachment of Bill Clinton. And it went over to the United States 

Senate where we did not get constitutional justice out of the Senate. What we got instead was one vote that wrapped up all questions of whatever kind of violations the President might have had. 

And then into that question was should he be removed from office. 

We have Harry Reid as a shield in the Senate, so now all of these 

provisions that our founding fathers have laid out, if they did anticipate the circumstances, they could neither come up with a solution that they could write into the Constitution to offer to us. 
143 

So I want to ask this question and go down to the line, first with 

Professor Turley. And that is, if the President shows the same level 

of disrespect for the judicial branch as he does for the legislative 

branch of our government, and refused to abide by a court, should 

we grant ourselves standing and somehow maybe overturn the veto 

of a President that would refuse to give us standing? What next is 

our recourse? And I think that is the question we should ask, but 

bleep through that. I know we are linear thinkers here, but we 

need to leap to what is our recourse if the legislative and the judicial branches of government are disrespected to an equal level, and 

the President is wrapped completely in the cloak of ‘‘I am President; therefore, I can do what I want?′′ 

Mr. TURLEY. Well, what you are describing would be tyranny if 

it went that far. Then we would have issues of removal. But I do 

think that you have avenues which you can pursue. I complement 

those that are focusing on standing and focusing, for example, on 

litigation abandonment issues of defending statutes. 

I do not believe that the book is closed on Member standing, and 

I do not agree that it is so clear that Members do not have standing. Having litigated this issue for Members, I think there is room 

that can be expanded upon. That is the reason I think these are 

good ideas. 

But when you are talking about, well, what happens if all the 

safeties go off, you know, do we have the sort of meltdown. And the 

answer is that the framers, I think, assumed that there would always be two branches aggrieved by any aggregation of power in the 

third branch; that in the desperation of the separation of powers, 

you find alliances. What I think they never anticipated was the degree to which the judicial branch would be absent without constitutional leave on this issue. But I am hoping that that will change. 

Mr. KING. Thank you. Professor Schroeder? Mr. Schroeder? 

Mr. SCHROEDER. Congressman, thank you. As you can imagine, 

I part company with you at the articulation of the problem. I think 

if you look at the President’s actions that are being controverted, 

one by one, you will see that each and every one of them is justified 

argumentatively by application of statutory law. So I do not accept 

the proposition that the President is disrespecting this body. 

He came into office trying to distance himself from President 

Bush, who did say on some notable national security-related questions that he had the ability to override—— 

Mr. KING. You are not going to contemplate my hypothetical 

then, Mr. Schroeder? 

Mr. SCHROEDER. Because I do not think we are in that situation. 

Were we—— 

Mr. KING. Since we are actually out of time then, I would just 

thank you and ask if Ms. Foley could respond. Thank you. 

Mr. SCHROEDER. Yes, thank you. 

Ms. FOLEY. Yes. I mean, it is a great and scary question. You 

know, if the President does not appreciate Congress’ constitutional 

prerogative to make the law, and if courts are not willing to defend 

that constitutional prerogative because of standing or whatever 

issues, or maybe Congress itself is too hesitant to even challenge 

the President in court—— 

Mr. KING. Or if the President does not honor a judicial decision. 
144 

Ms. FOLEY. Or if the President goes even further and does not 

even honor judicial decision, you know, the bottom line—Jonathan 

is actually right—we are in tyranny. We do not have a constitutional republic anymore. 

Mr. KING. Thank all the witnesses. And, Chairman, I yield back. 

Mr. GOODLATTE. The Chair thanks the gentleman and recognizes 

the gentleman from Florida, Mr. DeSantis, for 5 minutes. 

Mr. DESANTIS. Thank you, Mr. Chairman. So just following up, 

Professor Schroeder, you said that the President’s actions are justified by the applicable statutes. So for the Dream Act administrative amnesty, I think that is beyond prosecutorial discretion. You 

disagree. But where does the President get the authority to issue 

work permits for people who are in the country illegally when Congress has not even agreed to grant them legal status? 

Mr. SCHROEDER. Part of the regulations that the DHS has with 

respect to deferred action that have been on the books for a while, 

my understanding is, authorizes people who have been deferred to 

apply for work—— 

Mr. DESANTIS. So the regulation basically would trump the statute, which said they are not lawfully in the country. You would 

have to do that, correct? 

Mr. SCHROEDER. Well, in steps. Step one, what DHS is saying it 

has got longstanding authority, going back to 1975, to defer deportation actions. So that is step one. They claim they have that authority under the general discretionary statutes. 

Mr. DESANTIS. But they are making a categorical determination. 

Mr. SCHROEDER. And then at step two, once you are in that category authorized by discretionary judgment, there are regulations, 

and if you looked at the regulations, they would back those up with 

references to the statute, authorized work authorization. So it is a 

two-step process. 

Mr. DESANTIS. There is a distinction between regulations being 

asserted by an agency and what Congress has actually legislated 

definitely. But I take your point on that. 

You agree that this idea of if someone makes a criticism of the 

President acting one way to say, well, Reagan did 200 more executive orders, the number of executive orders tells us nothing about 

their quality, correct? 

Mr. SCHROEDER. Yes. 

Mr. DESANTIS. Okay. And, two, most of the disputes that we are 

discussing are not formal executive orders. You can go to 

whitehouse.gov and look up executive orders—the mandate delay, 

the keep your plan, DACA. Those are not formal EOs with a number, correct? 

Mr. SCHROEDER. Correct. 

Mr. DESANTIS. Okay. Professor Foley, well, first of all, part of the 

problem, I think, here is with respect to Obamacare particularly, 

these suspensions and delays are really designed for the President 

to help his political party in an upcoming election. I mean, this is 

not a notion of, oh, the statute is so complicated. They have had 

4 years to impose these penalties. They obviously could do that. 

They are not doing it because they know if they were to do that 

there would be a political price to pay because the mandate would 

mean businesses would not expand or have a disincentive to ex-
145 

pand. There would be an incentive to put people to 29 hours. And 

there was a cook who confronted the President directly about this 

at a Google town hall not too long ago. 

And so, that, to me, is why it is so problematic. I mean, it is not 

like they are just trying to kind of do it. They are doing it in a way 

to lessen the pain before this election and spread it out so they can 

evade political accountability for the decisions that they have 

made. And I just think that that is wrong. 

Let me play devil’s advocate with you, Professor Foley, because, 

look, I mean, I am supporting kind of trying to do whatever we can. 

But in terms of enlisting the courts with this, you know, Hamilton 

said that the judiciary is beyond comparison, the weakest of the 

three departments. So the idea that they would kind of sit as a 

Mount Olympus and referee all these political disputes, I do not 

know that the Federalist Papers would necessarily justify that. 

And I would quote from Justice Scalia’s dissent in the Windsor 

case, which concerns standing. It was a different issue, but he 

frames it like this, and I would just get your response. ‘‘Congress 

must care enough to act against the President itself, not merely 

enough to instruct its lawyers to ask us,’’ meaning the Court, ‘‘to 

do so. Placing the Constitution’s entirely anticipated political arm 

wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but 

does not faithfully implement the Court’s decree, just as he did not 

faithfully implement Congress’ statute, what then? Only Congress 

can bring him to heel by, what do you think, yes, directly confronting the President.’’ 

So I guess my unease with it is it kind of seems like we are not 

really willing to do anything in Congress. I mean, we could withhold funding. The Senate could deny the President any appointments. They could say we are not going to consider any of these 

nominations until you start enforcing the law. So we have not really done anything in Congress, but yet we are kind of going to the 

courts basically hoping that they will bail us out. 

And again, like I said, I want to try whatever could be effective 

because I think we need to do checks, but I do not think from what 

Justice Scalia said that he would necessarily agree with going to 

the courts in this instance. So what is your response? 

Ms. FOLEY. Yes. I think you may be over reading Justice Scalia 

a bit because, first of all, the basic procedural posture of the Windsor case would be very different from a lawsuit that we are 

hypothesizing here. 

Mr. DESANTIS. Absolutely. 

Ms. FOLEY. A couple of things. First, the only thing that is required constitutionally for a Member of Congress or Members of 

Congress to bring a lawsuit against the President would be the injury-in-fact, right? It also has to be redressable, you know, in causation. Those are the other two elements. I am assuming those 

would be satisfied by this kind of lawsuit. So it is injury-in-fact 

that we have to focus on, which is the constitutional possible impediment to Congress bringing a lawsuit. 

And when it comes to injury-in-fact, the Court has made clear 

that it is looking for in an institutional injury lawsuit nullification, 

some act by the President that is tantamount to nullifying what 
146 

Congress has done. And if you are confident that you could pick a 

test case where it would be sort of the best poster child, right, for 

this fact pattern where Congress has declared X, and the President 

effectively said not X, then you can have confidence that you will 

satisfy the injury-in-fact requirement. 

Now, the next level of analysis is, frankly, what I think Professor 

Turley has been emphasizing, which is the Court also very briefly 

mentioned, like in Raines, some prudential factors that it also is 

concerned about in institutional injury lawsuits by Members of 

Congress, things like the availability of self-help, which is what I 

think you are highlighting here, things like the possibility of explicit congressional authorization. 

So you would have to make sure that you had the best case, 

again, for checking those prudential boxes as well. When it comes 

to a lawsuit alleging presidential failure to faithfully execute the 

laws, you have to ask yourself, what would Congress be able to do 

to help itself? It cannot repeal the law, right, because it wants the 

law faithfully executed. It cannot reenact the law because what is 

it going to do, reenact the same law and say we really, really mean 

it this time? 

The other possibility is impeachment. And so you have to say, 

well, would a court actually go to the drastic step of saying we are 

going to require that Congress actually try to impeach the President or actually impeach the President before we will even consider 

a lawsuit challenging the President’s failure to faithfully execute? 

I do not think a court would go that far because impeachment actually is not a remedy in the failure to faithfully execute scenario. 

Impeachment goes well beyond what Congress is seeking. Congress 

is simply seeking to faithfully execute the law, not get the guy out 

Congress. 

Mr. DESANTIS. Well, what about the funding? I mean, could they 

not say you guys could just defund the deferred action program? No 

funds shall be used to implement a deferral of adjudication. Would 

that not be self-help? 

Ms. FOLEY. I do not think so for this reason: it depends on what 

case you pick, right? But, for example, let us take Obamacare. Most 

of Obamacare is self-funding. There are some things that are not 

self-funding that maybe you could toy with. But you again have to 

ask yourself, okay, say I am a judge. Would I say that I would demand that Congress go to the lengths of defunding all kinds of 

things that have nothing to do with Obamacare just so Congress 

can get leverage against the President to force the President to 

faithfully execute? That seems a little bit like overkill to me. There 

is not a tight means end fit there. I do not think that is what the 

courts mean when they reference self-help. 

So, for example, in the court where they first reference self-help, 

and this is the only Supreme Court where they reference self-help 

is in Raines v. Byrd, they mention it at the very end of the opinion 

in a separate section, Section 4, after they have already decided 

that the members failed constitutional injury-in-fact. So they are 

tacking this on at the end as prudential factors. And when they 

mention it very quickly in one sentence, you can immediately see 

the wheels turning, and you can say, well, what could Congress 

have done in Raines v. Byrd to provide self-help? That answer is 
147 

clear. They simply could have repealed the Line Item Veto Act. 

When we are talking about President Obama’s failure to faithfully 

execute, that option is not available. 

Mr. DESANTIS. Great. Well, thank you. I yield back the balance 

of my time, if any. 

Mr. GOODLATTE. The Chair thanks the gentleman. The Chair 

thanks all the Members, and most especially thanks all the witnesses for their valuable contribution, and our first panel for their 

ideas with regard to the legislative initiatives they have offered. 

This is an issue that concerns a great many people in the country 

and a great many of us in the Congress. So we will continue to 

work on this in a legislative fashion to try to make sure that any 

president is held within the authority that the Constitution grants 

him, and does not stretch the meaning of prosecutorial discretion 

and other clauses that, in my opinion, were never meant in statutes to be as elastic as this President has found them to be. 

I thank you all for your participation. 

Without objection, Members will have 5 legislative days to submit additional written questions for the witnesses, and we would 

ask that you answer those questions promptly, or additional materials to be submitted for the record. 

And this hearing is adjourned. 

[Whereupon, at 1:08 p.m., the Committee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
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Material submitted by the Honorable John Conyers, Jr., a Representative 

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