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THE ORIGINAL UNDERSTANDING OF 

THE ROLE OF CONGRESS AND 

HOW FAR WE’VE DRIFTED FROM IT 

HEARING 

BEFORE THE

EXECUTIVE OVERREACH TASK FORCE 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

MARCH 1, 2016 

Serial No. 114–61 

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 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

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 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

MIMI WALTERS, California 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

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 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

EXECUTIVE OVERREACH TASK FORCE

STEVE KING, Iowa, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

DARRELL E. ISSA, California 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

RON DeSANTIS, Florida 

KEN BUCK, Colorado 

MIKE BISHOP, Michigan 

STEVE COHEN, Tennessee 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

JUDY CHU, California 

TED DEUTCH, Florida 

CEDRIC RICHMOND, Louisiana 

SCOTT PETERS, California 

PAUL B. TAYLOR, Chief Counsel 

JAMES J. PARK, Minority Counsel 
(III) 

C O N T E N T S 

MARCH 1, 2016 

Page 

OPENING STATEMENTS 

The Honorable Steve King, a Representative in Congress from the State 

of Iowa, and Chairman, Executive Overreach Task Force ............................... 1 

The Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee, and Ranking Member, Executive Overreach Task Force .......... 3 

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

of Virginia, and Chairman, Committee on the Judiciary ................................. 4 

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

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 5 

WITNESSES 

Matthew Spalding, Ph.D. Associate Vice President and Dean of Educational 

Programs Hillsdale College 

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

Prepared Statement ............................................................................................. 10 

Joseph Postell, Assistant Professor of Political Science, University of Colorado, Colorado Springs 

Oral Testimony ..................................................................................................... 31 

Prepared Statement ............................................................................................. 33 

James C. Capretta, Visiting Fellow, American Enterprise Institute and Senior 

Fellow, Ethics and Public Policy Center 

Oral Testimony ..................................................................................................... 45 

Prepared Statement ............................................................................................. 47 

Stephen I. Vladeck, Professor of Law, American University Washington College of Law 

Oral Testimony ..................................................................................................... 56 

Prepared Statement ............................................................................................. 59 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Darrell E. Issa, a Representative in 

Congress from the State of California, and Member, Executive Overreach 

Task Force ............................................................................................................ 77 

Additional material submitted by the Honorable Darrell E. Issa, a Representative in Congress from the State of California, and Member, Executive 

Overreach Task Force .......................................................................................... 90 

(1) 

THE ORIGINAL UNDERSTANDING OF THE 

ROLE OF CONGRESS AND HOW FAR WE’VE 

DRIFTED FROM IT 

TUESDAY, MARCH 1, 2016 

HOUSE OF REPRESENTATIVES

EXECUTIVE OVERREACH TASK FORCE

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Task Force met, pursuant to call, at 10 a.m., in room 2237, 

Rayburn House Office Building, the Honorable Steve King (Chairman of the Task Force) presiding. 

Present: Representatives King, Goodlatte, Issa, DeSantis, Bishop, 

Cohen, Conyers, Nadler, Johnson, Chu, Deutch, and Peters. 

Staff present: (Majority) Paul Taylor, Chief Counsel, Executive 

Overreach Task Force; Zachary Somers, Parliamentarian & Chief 

Counsel, Committee on the Judiciary; Tricia White, Clerk; (Minority) James J. Park, Minority Counsel; and Veronica Eligan, Professional Staff Member. 

Mr. KING. If the Executive Overreach Task Force will come to 

order, and without objection the Chair is authorized to declare recess of the Committee at any time. I would start with my opening 

statement. 

I want to thank Chairman Goodlatte for supporting this special 

House Judiciary Committee Task Force on Executive Overreach, 

which will examine the problem of Congress’ gradual ceding of legislative power to other parts of the Federal Government, and the 

President’s taking additional legislative powers even beyond that. 

This is much more than a mundane process problem. It is a tragic result for individual rights and liberties. Policies imposed by 

Federal agencies are crafted by unelected bureaucrats. Because 

those bureaucrats do not have to answer to the American citizens 

over the course of regular elections, they have little understanding 

of the desires and concerns of those Americans. And so they 

produce policies that, for example, make energy more expensive, 

take people’s property through Federal regulations, drive down 

wages through lawless amnesty programs, and restrict communications on the Internet. 

The Founders insisted and insisted on keeping policy making in 

the hands of regularly elected congressional representatives precisely to avoid these sorts of policy catastrophes. As the former his-
2 

torian of the House of Representatives, Robert V. Remini has written, ‘‘The Framers of the Constitution were absolutely committed 

to the belief that a representative body accountable to its constituents was the surest means of protecting liberty and individual 

rights.’’ 

So anxious were they to affirm legislative supremacy in the new 

government that they failed to flesh out the executive and judicial 

departments in the Constitution, leaving the task to Congress and 

thereby assuring that the legislature would retain control of the 

structure and authority of both those branches of government. 

And within that system of legislative supremacy the House of 

Representatives was to serve a unique role. Alone among all Federal institutions the House has consisted solely of those duly elected by the people. 

Further, the Constitution grants the House the exclusive power 

to originate all legislation for raising revenue. The House of Representatives is the most regularly elected body in the Federal Government. In Federalist 39 James Madison wrote, ‘‘The House of 

Representatives is elected immediately by the great body of the 

people. As such the House of Representatives will derive its powers 

from the people of America.’’ 

In Federalist 52 Madison elaborated, ‘‘As it is essential to liberty 

that the government, in general, should have a common interest 

with the people, so it is particularly essential that the House 

should have an immediate dependence on and an intimate sympathy with, the people. Frequent elections are unquestionably the 

only policy by which this dependence and sympathy can be effectually secured.’’ That is James Madison. 

In this age of hyper-partisanship when more and more attention 

is paid to political results and less and less to Constitutional 

means, we tend to lose sight of why the Founders created the system that they did. Focus not on results but on process and a separation of powers. 

Under that system of a separation of powers each branch of the 

Federal Government was expected to protect its own Constitutional 

powers such that no single branch accrued power it was not allocated by the Constitution. The Founders understood that individuals were free in direct proportion to each branch of the Federal 

Government staying strictly within its own bounds, and the most 

important lane was the legislative lane; a narrow road of strictly 

enumerated powers written by a Congress consisted of duly elected 

representatives; with the House of Representatives the body most 

regularly elected, and with special powers over the origination of 

revenue bills in the driver’s seat. 

But today many legislative and budget powers have been ceded 

to Presidents and the executive branch through statutes delegating 

legislative responsibility to Federal regulatory agencies composed 

of unelected people; and statutes mandating automatic and increased spending on certain programs administered by the executive branch. 

Other legislative powers have simply been seized by Presidents 

who exercise sheer will to trump the rule of law. Whatever the 

means of the loss of legislative power by Congress it is imperative 

that Congress reclaim it, not simply for its own sake, but because 
3 

without it individual rights and liberties cannot flourish as the 

Founders intended. 

It has long been my view that the Framers of our Constitution 

structured the three branches of government in a fashion that, 

with as bright a lines as they could draw, between each three 

branches of government. Understanding though that language 

could not precisely define the distinctions between an Article 1, Article 2, and Article Three authorities within the Constitution, but 

they did rely on human nature and they believed that each branch 

of government would jealously protect the powers granted to it in 

the Constitution, and there would be a static tension that would be 

achieved between the three branches of government. 

I believe that has shifted over the years and we are here to address this in this Task Force. And, again, I thank Chairman Goodlatte for organizing this Task Force. And I would recognize the 

Ranking Member, Mr. Cohen, for his opening statement. 

Mr. COHEN. Thank you, Mr. King, and pleased to be serving as 

the Ranking Member of this Committee, the Executive Overreach 

Task Force. I appreciate serving with Mr. Conyers and fellow Members of this Committee and being the Chair. Mr. King and I share 

a lot of things in common, that is true. We both have the first 

name Steve. Neither one of us endorse Donald Trump. But we believe in the Constitution, we want to have good government, and 

we care about government, and we work together on this Committee. 

The Constitution makes clear that all legislative power is ‘‘vested’’ in the Congress, Article 1. Some of our witnesses today take 

the view that this vesting of legislative power means that Congress 

cannot constitutionally delegate power to executive branch agencies, even when it retains ultimate authority to determine when 

and how much power should be delegated. 

They ask us to look only at what they define to be the founding 

generation’s view of government and the separation of powers, and 

asked us to reach that same conclusion. Telling us that much of the 

intervening 200 plus years is not of any real importance in understanding how our Constitution should work. 

Perhaps unsurprisingly they suggest that the Constitution, as 

they claim it was understood by the Framers, may require Congress to cut funding for Social Security, Medicare, and Medicaid. 

Maybe coincidentally they argue that the reading of the Constitution raises questions about the Constitutionality of the Affordable 

Care Act, which has thus far provided 18 million Americans with 

health insurance, ended discrimination by insurers against those 

with pre-existing conditions, and allowed 2.3 million young adults 

under 26 to remain on their parent’s health insurance, among 

other benefits. 

Indeed some of our witnesses contend that Congress went astray 

when it began to delegate authority to the executive branch to enforce regulations on Wall Street, protect public health and the environment, ensure worker’s rights, and guarantee civil rights. It is 

not too much of a stretch to say that some of our witnesses would 

like to extend much of the 20th and 21st century would like see 

much of that repealed. My guess is that they probably lack the 

votes to achieve such an end through the political process. So in-
4 

stead they just turn to a Constitutional theory that says we should 

only look at one snapshot of our history and ignore all the rest. 

Why is that that we have agencies that develop regulations? As 

the Supreme Court has recognized Congress’ delegation of authority to the Executive arises from the practical recognition that our 

society and our economy have become far more complex, and problems far more technical than in the late 18th century, and indeed 

when the Founders created our Nation. 

Congress had brought principles into statute and leaves it to expert agencies to carry out that statute in conformity with those 

principles. It is the Executive that does administer the law. In 

short, Congress retains ultimate legislative authority, it can delegate that authority, and it can also rescind or limit the scope of 

that delegation. 

This process has worked well to millions of Americans for a wide 

variety of harms—protect millions of Americans from a wide variety of harms, enhance innovation, and economic growth, and ensure basic fairness and justice. And it was made possible by a 

broadly written Constitution that was flexible enough to accommodate changing times and circumstances. 

That was the true wisdom of the Constitution’s Framers to create 

a document and one strong enough to serve as a clear framework 

of government, but also adaptable so as to be enduring. 

I look forward to hearing our witnesses’ testimony. I yield back 

the balance. 

Mr. KING. I thank the gentleman and now I recognize the Chairman of the full Committee, Mr. Goodlatte, from Virginia for his 

opening statement. 

Mr. GOODLATTE. Thank you, Mr. Chairman. James Madison 

wrote in Federalist No. 47, ‘‘The concentration of executive, legislative, and judicial power in the same hands is the very definition 

of tyranny.’’ Yet White House Chief of Staff, Denis McDonough, recently said, ‘‘Audacious executive actions are being crafted to make 

sure the steps we have taken are ones we can lock down, and not 

be subjected to undoing through Congress or otherwise.’’ Beyond 

even those unconstitutional actions the President has already 

taken. 

The Founders would have expected Members of the House of 

Representatives, known as the people’s house for its most direct 

connection to the will of the people, to aggressively guard their role 

in the Constitutional legislative process. This Task Force will do 

just that in a manner that educates other Members and the public 

on the dangers to current and future generations of the ceding of 

power away from the people’s house, and Congress generally. 

In Federalist No. 57 Madison wrote, ‘‘The House of Representatives is so constituted as to support in the members and habitual 

recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can 

be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise 

of it is to be reviewed.’’ 

Keeping legislative power, and in particular budgeting power, 

close to the will of the people was considered so important that the 
5 

Constitution specifically provides that the House of Representatives 

has the exclusive authority to originate revenue bills. 

Indeed regarding budget matters when the first Congress in 1789 

considered the law creating the Treasury Department in the executive branch, the bill as originally introduced authorized the Secretary of the Treasury to devise and report plans for the improvement and management of the revenue. But it was feared that even 

giving the Secretary of the Treasury the modest power to report 

plans implied too much authority for the executive branch. And so 

the bill was amended to authorize the Secretary only to prepare 

plans regarding the management of revenue. 

The amended bill also specifically required the Secretary to make 

report and give information to either branch of the legislature in 

person or in writing, as he may be required, respecting all matters 

referred to him by the Senate of House of Representatives, or what 

shall appertain to his office. 

It thereby allowed Congress to request financial information directly from the Treasury Secretary bypassing the President; and 

made clear that Congress and not the President was the ultimate 

authority on budget issues. 

But today as our witnesses will elaborate, Congress exercises far 

less control over budget matters than was originally intended. 

Whereas early Congresses specified exactly how much money would 

be spent for how long to build a lighthouse or a post road, for example. Many Federal programs today enacted by Congresses decades ago are administered by the executive branch and funded on 

an autopilot basis, their allocations increasing automatically by 

statute without the need for any periodic review by Congress. 

The threat posed by the ceding of legislative power by Congress 

to this generation and future generations, can often be seen abstract in the midst of intense policy debates in an historically hyper 

partisan environment. 

As law Professor David Bernstein has written, ‘‘The authors of 

the Constitution expected that Congress as a whole would be motivated to preserve its authority against Presidential encroachment.’’ 

The Founders, however, did not anticipate the development of our 

two party system. At any given time around half the Members of 

Congress belong to the same party as the President, and do not 

want to limit their President’s authority. 

Yet as then Chairman of the House Judiciary Committee Democrat John Conyers said under the Presidency of Republican George 

W. Bush, ‘‘I believe it is in all of our interests to work together to 

rein in any excesses of the executive branch, whether it is Democratic, Republican, or even Libertarian hands.’’ I agree with Ranking Member Conyers, and I look forward to hearing from all of our 

witnesses today. 

Mr. KING. Thank you, Mr. Chairman. Now I recognize the Ranking Member of the full Committee, Mr. Conyers, for his opening 

statement. 

Mr. CONYERS. Thank you, Mr. Chairman, and I thank the previous speaker for his recollection of our comment at an earlier period. Members of the Committee I have expressed from time to 

time the hope that we could work collaboratively in some areas of 

mutual interest; but in particular those centering on strengthening 
6 

Congress’ ability to conduct oversight of the executive branch. I am 

hopeful that there is room on this Task Force for bipartisan cooperation, as much as possible. 

That being said, I also recognize that there will inevitably be 

areas of fundamental philosophical differences between the majority and the minority. On some level our hearing topic today on the 

original understanding the role of Congress and how far we have 

drifted from it reflects both potential paths for this Task Force. 

To begin with there are indeed policy areas like war powers matters where Congress has, to me, failed to assert itself sufficiently 

leaving room for the President to expand his unilateral authority. 

As one of our witnesses, Professor Vladeck, will testify in greater 

detail the earliest Congresses understood that inaction or indifference by Congress in placing specific limits on a President’s war 

making authority, enables and even invites the expansion of Presidential power at Congress’ expense. Simply put, if Congress fails 

to act to place limits on Presidential authority it has little basis to 

complain about separation of powers concerns. 

It is also important to remember that when Congress has delimited executive power by statute, there is a difference between cases 

where a President simply ignores such limits and cases where a 

President interprets the broad delegation of authority by Congress. 

A President might simply ignore clear statutory limits that Congress has placed on his power. President George W. Bush, for example, claimed the authority to ignore statutory limitations on his 

exercise of power with regard to national security, including prohibitions on torture and warrantless surveillance, among other 

things. 

In other cases Congress has given a broad grant of authority to 

the executive branch for the purpose of implementing statutes, and 

there may be a dispute as to the precise scope of that grant of authority. It is important not to conflate these situations. The former 

is far more troubling from a separation of powers perspective than 

the latter. 

Finally, we must ask why it is that Congress has chosen in many 

instances to delegate authority to the executive branch, particularly with respect to economic and health and safety regulation. In 

large part this is a reflection of the fact that we live in a society 

that is far more complex than the one that existed in the late 

1700’s. 

As even our witnesses here this morning acknowledge, the country and the Congress were far smaller and simpler at that time. 

And the Framers wisely built in some ‘‘flex in the joints’’ of our 

Constitution precisely to capture all the changes to our society and 

economy that could not be foreseen in the 18th century. 

It is important to remember that even where Congress has delegated authority to the executive branch, the power to legislate ultimately still resides with Congress. Congress is always free to rescind its delegation of authority or to narrow the scope of delegation. And so I look forward to an engaging discussion with our witnesses and among ourselves, and thank all of you for being here. 

Thank you, Mr. Chairman. 

Mr. KING. I thank the dapper gentleman from Michigan for his 

statement. 
7 

And without objection, other Members’ opening statements will 

be made a part of the record. 

Let me now introduce our witnesses. Our first witness is Matthew Spalding; he is Associate Vice President and Dean of Educational Programs, Hillsdale College. Mr. Spalding also oversees 

the operations of the Allen P. Kirby, Jr. Center for Constitutional 

Studies and Citizenship here in Washington, D.C. 

Our next witness is Joseph Postell; he is the Assistant Professor 

of Political Science at the University of Colorado at Colorado 

Springs. Professor Postell is currently completing a book titled, 

‘‘Bureaucracy in America, The Administrative State, and American 

Constitutionalism.’’ 

Our third witness is James C. Capretta, visiting fellow at the 

American Enterprise Institute, and senior fellow at the Ethics and 

Policy Center. Mr. Capretta has served as an Associate Director at 

the White House Office of Management and Budget, and as a senior health policy and analyst at the U.S. Senate Budget Committee, 

and at the U.S. House Committee on Ways and Means. 

Our fourth and final witness is Stephen Vladeck, Professor of 

Law at American University, Washington College of Law, and he 

is teaching in a research focused on Federal jurisdiction, Constitutional law, and national security law. We welcome you all here 

today and look forward to your testimony. 

Each of the witnesses’ statements will be entered into the record 

in its entirety. I ask that each witness summarize his testimony in 

5 minutes or less to help you stay within that time. There is a timing light in front of you. The light will switch from green to yellow 

indicating you have got 1 minute to conclude your testimony. When 

it turns red it indicates that we appreciate it if you have concluded 

your testimony. 

Before I recognize the witnesses it is the tradition of the Subcommittee that they be sworn in so please stand to be sworn in. 

Do you solemnly swear that the testimony that you are about to 

give will be the truth, the whole truth, and nothing but the truth, 

so help you God? 

You may be seated. Let the record reflect that the witnesses answered in the affirmative. I now recognize our first witness, Mr. 

Spalding. Mr. Spalding, your 5 minutes. 

TESTIMONY OF MATTHEW SPALDING, Ph.D. ASSOCIATE VICE 

PRESIDENT AND DEAN OF EDUCATIONAL PROGRAMS HILLSDALE COLLEGE 

Mr. SPALDING. I thank you, Mr. Chairman. My thesis is actually 

quite simple. It was Congress, the intended primary branch of government, by choosing to diminish its Constitutional powers which 

enabled the rise of the so-called imperial Presidency and the temptations of executive overreach of our day. Likewise Congress has 

the power to stop the executive from overwhelming American selfgovernment with bureaucratic rule should it choose to do so. 

In my testimony I discuss the rule of law as it informed the 

American Constitution, culminating in absolute centrality of lawmaking and legislatures. The full implications of which are seen in 

the American founding itself, especially the consent to the government; hence, the importance of Article 1, which lodges a basic 
8 

power of government in the legislature and its ability to make 

laws. 

Its core powers listed in Article 1, utmost of significance I point 

to the Power of the Purse, the Appropriations Clause in Article 1, 

Section Nine; a limit most notably on executive action. 

And Congress, not the executive, has the authority needed to 

carry out additional functions under the necessary and proper 

clause. The separation of powers of the defining structural mechanism by way that this works such that the self-interests of each 

branch make it a check on the others, and they jealously protect 

their own powers. 

This changed with the progressives. They positive a sharp distinction between politics and what they call administration. Politics 

would remain the realm of expressing opinions but the real decisions in theory, they argued, would—and the details of government 

would be handled by administrators in what they called the administrative state. 

The Founders went to great length to preserve consent and limit 

government through public institutions and the separation of powers. The progressives held that the barriers erected by the Founders had to be removed, or circumvented, to unify and expand the 

powers of government. In this new conception government is administrative and bureaucratic; government must always evolve and 

expand. In theory it must remain unlimited. 

We have been moving down this path slowly for some time. The 

most significant shift, I argue, occurred under the Great Society 

when the Federal Government set about creating programs to manage the whole range of socioeconomic policy. The expansion of activities led to vast new centralizing authority in the Federal Government, and a vast expansion of Federal regulatory authority. It 

also brought with it what we conventionally mean by big government, huge workforces, massive expenditures, extensive debt, and 

created a new source of conflict between the executive and the legislative. 

At first Congress had the upper hand; Congress had been creating the bureaucracy to carry out its wishes. But the more Congress gave away its powers in the form of broad regulatory authority, the more bureaucrats effectively became the lawmakers. The 

rise of the new imperial Presidency, and it should be shocking but 

no surprise, as Congress has expanded the bureaucracy creating 

programs, delegating authority, neglecting budgeting; the executive 

has attained unprecedented levels of authority. Our executives can 

command the bureaucracy to implement new procedures and policies without the cooperation of Congress by abusing executive discretion, by exploiting the vagaries of poorly written laws, and now 

by willfully neglecting and disregarding the laws which indeed are 

clear. 

By acting unilaterally without or against the authority of Congress, the executive not only assumes the duty of legislative powers 

without legislative accountability, but also avoids responsibility for 

executing the laws legitimately authorized by Congress. Once it 

has been established that the President can govern without Congress and, by extension, without the law it will prove difficult and 
9 

perhaps impossible to prevent future executives from following the 

same lawless path. 

The only way to reverse the trend of a diminishing legislature 

and the continued expansion of the bureaucratic executive is for 

Congress to strengthen its Constitutional muscles. Congress must 

reassert its legislative authority and to cease delegating what 

amounts to power to make laws. If it allows administrators the discretion to create significant rules Congress can assert its authority 

to approve or reject those rules. 

Second, Congress must regain legislative control or is stays in its 

labyrinth state bringing consent and responsibly back through better lawmaking up front and, as a result, better oversight after the 

fact. The day to day back and forth of overseeing the operations of 

government will do more than anything else to restore legislative 

control or it stays unlimited government. 

Third, one place where the power of Congress is not entirely lost 

and where there is opportunity for gaining leverage over an unchecked executive is congress’ Power of the Purse, strategically controlling using the budget process. If Congress does not act to correct the growing tilt toward executive bureaucratic power the structure of our republican government will be fundamentally and, perhaps, permanently altered. 

Congress needs to think strategically and act as a Constitutional 

institution. And it must begin doing so forcefully stating its argument, putting down clear markers, and drawing enforceable institutional lines before the inauguration of the next President, whoever that might be, and regardless of their political party. 

Thank you. 

[The prepared statement of Mr. Spalding follows:] 
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Mr. KING. All right thank you, Mr. Spalding. And now I will recognize Mr. Postell for his testimony. 

TESTIMONY OF JOSEPH POSTELL, ASSISTANT PROFESSOR OF 

POLITICAL SCIENCE, UNIVERSITY OF COLORADO, COLORADO SPRINGS 

Mr. POSTELL. Thank you very much, Mr. Chairman, and Members of this Task Force. I am delighted to be here and I appreciate 

the opportunity to testify. In my written testimony and in my brief 

remarks this morning I am addressing two questions. The first, 

how the early Congresses avoided delegating its legislative power 

over to the executive. And second, how Congress structured itself 

in its early decades in order to ensure that it, and not the executive, set the legislative agenda. 

Today Congress routinely delegates massive legislative lawmaking power over to administrative agencies. This is contrary to 

the text of the Constitution and it is contrary to the intentions of 

the Framers. Some scholars claim that early Congresses delegated 

power to the executive and, therefore, it is perfectly okay for Congress doing so today. The historical record, however, shows otherwise. Article 1 of the Constitution states plainly, ‘‘All legislative 

powers herein granted shall be vested in a Congress of the United 

States.’’ It does not give Congress the option in Article 1 to delegate 

those powers. It sets up, in other words, a non-delegation principle. 

Early Congresses observed this principle very carefully. The laws 

they passed were highly detailed, they limited the discretion of the 

executive. Congress wrote every detail of the tariff laws in its first 

decades, specifying not only the amounts of the taxation but the 

products to be taxed. Congress wrote in very specific detail the 

routes of the post roads in the early decades of the Republic. 

In the second Congress James Madison, a Member of the House, 

said this, ‘‘We must distinguish between the deliberative functions 

of the house and the ministerial functions of the executive powers.’’ 

Legislative determinations, he insisted, must remain in Congress’ 

hands; ministerial execution of law is the job of the executive. 

But this leads to my second point. Although Congress avoided 

delegating its legislative powers in the early decades of the Republic, the early Congresses ran into a related problem. The problem 

was the executive was influencing the legislative process, setting 

the agenda for Congress rather than letting leaders within the 

Congress set the agenda. Our first Treasury Secretary, Alexander 

Hamilton, was by all accounts the most important legislative policymaker in the first decade of the Republic. 

As President, Thomas Jefferson actually wrote bills to be sent 

over to Congress to be passed. This was not appropriate for a system of separated powers and Congress knew to reverse this it had 

to reclaim the authority to set its own agenda. Congress’ solution 

to the problem was to set up internal structures of power to provide the necessary leadership within Congress to allow it to set and 

implement its own agenda. Without leadership Congress realized it 

would succumb to what is called a collective action problem. That 

without leaders in the Congress, Members would cater to their districts back home rather than working together to pass laws in the 

national interest. 
32 

Throughout the 19th century Congress modified its internal procedures and strengthened its leadership in order to provide the solution to these collective action problems. By 1825 the House had 

set up 28 standing Committees to provide it with the expertise 

needed to free it from the expertise of the executive branch. 

Later in the 1800’s the Speaker was given significant, even massive, authority to set the legislative agenda and influence Members 

to promote that agenda. Most of that authority centralizing leadership in the Congress has since been eliminated by progressive reformers. 

As a result of its internal leadership that it developed over the 

first century of its existence, Congress’ ability to manage its affairs 

improved dramatically. And not coincidentally in the 19th century 

the power of the executive diminished dramatically. The early experience of the Congress, therefore, teaches us a second lesson. 

Without internal leadership Congress will follow the agenda set by 

the executive rather than its own. A Republican form of government is predicated upon a strong legislative branch to serve as the 

place of popular representation. One person in the White House 

cannot possibly adequately represent the American people. In seeking to preserve its role Congress should consult the lessons of its 

early experience. 

Members of this Task Force, thank you very much for the opportunity to present this testimony. And I look forward to your questions. 

[The prepared statement of Mr. Postell follows:] 
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Mr. KING. Thank you, Mr. Postell, for your testimony. And the 

Chair now recognizes Mr. Capretta for his testimony. 

TESTIMONY OF JAMES C. CAPRETTA, VISITING FELLOW, 

AMERICAN ENTERPRISE INSTITUTE AND SENIOR FELLOW, 

ETHICS AND PUBLIC POLICY CENTER 

Mr. CAPRETTA. Thank you, Mr. Chairman, and Members of the 

Task Force. I am very pleased to be here this morning. I am very 

pleased to be here this morning, thank you for inviting me. 

The Power of the Purse is arguably the most important power 

granted to Congress in the Constitution. It is what separates our 

system of government from many others. The United States President, unlike a king, cannot decide to withdraw funds from the 

Treasury without an appropriation by Congress, no matter how 

pressing the purpose. Even in an emergency, such as in the aftermath of 9/11, Presidents must go to Congress and ask for the funding. 

This Power of the Purse is the primary means by which the people’s elected representatives exert control over the size, direction, 

and activities of the Federal Government. 

Over recent decades Congress has chosen to steadily dilute this 

power by granting to the executive branch permanent, and oftentimes unlimited or ambiguous, appropriations. This granting of 

permanent spending authority, generally for programs that are 

called entitlements, has delegated to the executive branch significant discretion over the terms of this spending. Moreover because 

the spending authority is open ended or indefinite in appropriation 

terms, Congress has given up substantial control over the overall 

size of government, over total Federal spending, and over deficits 

and debt. 

The list of programs with permanent spending authority in current law is long. It begins, of course, with the major entitlement 

programs but there are many other programs with permanent 

spending authority too. Including the Supplemental Nutrition Assistance Program, the Social Services Block Grant, some functions 

of border security and control, portions of Federal housing assistance, reinsurance and risk corridor payments to insurance companies under the Affordable Care Act, and much else. 

The spending authority provided by Congress for other programs 

are often flexible enough to accommodate substantial and expensive executive discretion. 

For instance, the current administration used its authority under 

the SNAP Program to waive the state enforced work requirements 

in the program for a number of years. The result has been a surge 

in enrollment in the program that is well above the historical 

norm, even after taking into account the soft labor market of recent 

years. 

The provision of permanent and open-ended spending authority 

by Congress has resulted in a complete transformation of the Federal budget; 64 percent of the Federal budget was devoted to annually appropriated accounts in 1965. By 2015 that portion of the 

budget had shrunk to 32 percent, while spending on mandatory 

and entitlement programs now takes up more than three fifths of 

the entire Federal budget. 
46 

It is not a coincidence that as budgetary pressures have risen the 

growth of political pressures have built to cut discretionary appropriations. In recent budget deals it has been much easier for Congress to apply significant pressure on discretionary accounts than 

it is to apply pressure on the permanently appropriated accounts. 

And we can see the result of that in the long-term trend toward 

lower spending on that portion of the budget. 

It will not be possible to reverse the trend toward permanent appropriations authority quickly, nor would it be advisable for Congress to undo such authority in every program. I am not arguing 

for that. 

For instance, in Social Security it is important to have a program 

with some certainty associated with the provision of retirement 

benefits. Workers need that to make appropriate financial plans. 

But making allowances for the legitimate need for program certainty need not mean that Congress must cede all budgetary control to the executive branch. Congress should consider several steps 

to reverse current trends and bring more spending back under the 

direct control of the House and Senate. 

Through the Budget Resolution Congress could consider imposing 

limits on what is spent on the non-discretionary portion of the 

budget. This would require a change of law before this could be 

done. Such a limit would need to be enforced with some automatic 

restraints if it were ever to be breached. And some programs could 

be accommodated with exemptions or adjustments, but the basic 

idea being putting an overall limit would restore Congress’ ability 

to budget in this area of the budget that it is not controlling today. 

Further, Congress could also begin to reassert its role by imposing specific limits on certain programs. For instance, Congress 

could specify that a program’s permanent appropriation may not 

grow by more than some rule, such as the rate of inflation. If the 

program were projected to grow faster than that then the executive 

branch would be required to come back to the Congress and ask for 

additional spending authority, perhaps then triggering some reforms. 

The U.S. Constitution gives Congress the sole power to appropriate funds out of the Treasury. Over many years, for understandable reasons, Congress has delegated a lot of that authority now to 

the executive branch. It’s time to begin reversing that trend. Thank 

you. 

[The prepared statement of Mr. Capretta follows:] 
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Mr. KING. Thank you for your testimony, Mr. Capretta. And now 

I would recognize Mr. Vladeck for his testimony. 

TESTIMONY OF STEPHEN I. VLADECK, PROFESSOR OF LAW, 

AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW 

Mr. VLADECK. Great. Thank you, Chairman King, Ranking Member Cohn, distinguished Members of the Task Force. Although 

many have been quick to blame the President for the perceived 

drift in the separation of powers, I want to suggest in my brief remarks today that any such drift is at least as much a result of legislative torpor. And unwillingness on the part of Congress to use 

substantive legislation to better define and police the authority delegated to the executive branch. 

When discussing concerns over executive power the Founders 

would have distinguished, and did distinguish as I explain in more 

detail in my written statement, between three types of inter-branch 

disputes. The first type of inter-branch dispute, and by far the least 

significant from a separation of power standpoint, arises from disagreement between the Congress and the executive branch over the 

terms of a statute that the executive branch is enforcing. 

In such cases the issue is not whether the President is acting unconstitutionally, but rather whether the actions of executive branch 

officials are consistent or not with whatever directives Congress 

has prescribed. Moreover, the Supreme Court has typically afforded 

deference to the executive branch’s reasonable interpretations of 

ambiguities and the statutes it is tasked with enforcing, even if the 

courts or the current Congress, might read the same text differently. 

The second type of inter-branch dispute involves cases in which 

the executive branch claims a Constitutional authority to act in the 

face of Congressional silence, as Justice Jackson explained in his 

celebrated concurring opinion in the Steel Seizure case. In such circumstances where no statute either authorizes or specifically limits 

the President’s authority, ‘‘Congressional inertia, indifference, or 

quiescence may sometimes, at least as a practical matter, enable 

if not invite measures on independent Presidential responsibility.’’ 

The third type of dispute, which poses the gravest threat to the 

separation of powers, involves circumstances in which the President claims the authority to act in defiance of statutory limits on 

his authority because, in his view, such statutes unconstitutionally 

infringe upon his Constitutional powers. 

As Justice Jackson put it in the Steel seizure case, ‘‘Presidential 

claim to a power at one so conclusive and preclusive must be scrutinized, excuse me, scrutinized with caution, for what is at stake 

is the equilibrium established by our Constitutional system.’’ 

I offer this taxonomy to underscore three points that I believe are 

central to today’s hearing, and to the broader work of this Task 

Force. First, in my view most of the areas in which President 

Obama has been criticized for overreaching fall into the first of 

these categories and, therefore, reduced to good faith disputes over 

statutory interpretation and not over the scope of the President’s 

Constitutional powers. 

As a case in point consider the current debate over the President’s legal authority to use military force against ISIL. The 
57 

Obama administration has maintained since September of 2014 

that apart from isolated and limited acts of self-defense, its general 

authority to use such force derives not from Article 2 of the Constitution, but from the AUMF. Even though that statute, one, says 

nothing at all about ISIL and, two, only authorizes force against 

groups that were responsible for or assisted in the attacks of 9/11, 

which occurred before ISIL even existed. 

Some agree with the Obama administration’s legal reasoning, 

others do not. But even if the executive branch is incorrect in its 

interpretation of the AUMF, all that would mean is that the executive branch is mistaken in its reading of a statute, not that it is 

willfully abusing its inherent Constitutional authority. This is exactly why many, including President Obama himself, have repeatedly called upon this Congress to pass a new AUMF for ISIL. Not 

because they are convinced that the executive branch is acting unlawfully in using force under the 2001 AUMF, but because such a 

statute would reassert Congress’ institutional role in war making, 

and would set the parameters for the current armed conflict whether or not the President already has statutory authority for the actions he is undertaking. 

Second, President Obama has not been nearly as aggressive in 

claiming the kind of indefeasible executive power that was routinely invoked during the Bush administration. The authority to ignore statutes that, among other things, prohibited torture, limited 

the government’s power to conduct warrantless surveillance, required statutory authorization for the detention of U.S. citizens as 

enemy combatants, and so on. A common refrain during the Bush 

administration was that statutes Congress enacted to limit the 

President’s power were unconstitutional. We have heard far, far 

less of that argument from the White House over the past 7 years 

and, in my view, for good reason. 

Third, and perhaps most importantly, unlike with respect to 

claims of indefeasible power concerns that the President is overreaching in either of the first two categories I have described can 

easily be ameliorated through new legislation clarifying the scope 

of an existing delegation, or circumscribing the President’s power 

to act in the absence of statutory authority. In Federalist 51, James 

Madison famously explained that for our system of separated powers to function ambition must be made to counteract ambition. I 

could not agree more. But to date the 114th Congress has enacted 

126 public laws, fewer than half the total of what was previously 

the most unproductive Congress in American history, the 112th, 

which passed 283. By contrast the 80th Congress, which President 

Truman famously derided as the ‘‘Do Nothing Congress,’’ enacted 

906 public laws. 

Reasonable minds can and will surely will disagree about the 

merits of President Obama’s policy ambitions and statutory interpretations, in these areas and others. What cannot be said is that 

this Congress has been uniquely reluctant to counteract or otherwise mitigate those ambitions through substantive legislation. 

What this underscores, in my view, is that any contemporary 

drift from the historical balance between the branches has been at 

least as much a result of Congressional inability or unwillingness 

to do the hard work of legislation as it has been the result of Presi-
58 

dential aggressiveness, and has already made solution not in hearings like this one, but in new substantive legislation that would 

more directly vindicate Congress’ institutional and Constitutional 

role. 

Thank you for your time and I look forward to your questions. 

[The prepared statement of Mr. Vladeck follows:] 
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Mr. KING. Thank you for your testimony, Mr. Vladeck. I thank 

all the witnesses for your testimony. We will now proceed under 

the 5-minute rule with questions. And I will begin and direct my 

first question to Mr. Spalding. 

Mr. Spalding, I noticed in your testimony that you referenced the 

1688 Glorious Revolution and the establishment of a legislative supremacy over the monarch. Could you elaborate on that if that is 

the foundation by which our Founding Fathers looked to when they 

wrote Article 1 in the Constitution? 

Mr. SPALDING. Thank you for the question. The importance of the 

Glorious Revolution to the American Revolution is high. The long 

establishment of the rule of law through British Constitution culminates in the Glorious Revolution, which could only go so far. It 

established legislative supremacy. Having said that that legislative 

supremacy used by Parliament against the Americans of the colonies was objectionable to them. 

The American Founders perfected this question by constructing 

a Constitution of three coequal branch, the legislative being first. 

But with the power that we have talked about and the various 

checks on it, and the executive and the judiciary to the separation 

of power system. 

Mr. KING. So in other words, that was what the Founding Fathers—one of the things they looked at when they said they need 

to have a method to restrain an over exuberant legislative branch 

that might have been all powerful. It helped them bring that to the 

balance of the three powers—branches of government. 

Mr. SPALDING. And they did so by having a written Constitution, 

which was the main difference between the Glorious Revolution 

and the American Revolution. 

Mr. KING. Indeed and thank you. And then so I also wanted to 

pose another question to you, Mr. Spalding. And that is that do you 

believe that our Founding Fathers imagined that there would be an 

executive that would threaten to veto any legislation that did not 

include all of his appropriations that he demanded in it? And in 

vetoing that legislation would bring about a government shutdown. 

What did you imagine our Founding Fathers thought would happen 

if an executive took that kind of a step, which we have seen in the 

last couple of years frequently? 

Mr. SPALDING. Well the first thing to point out is the history of 

executive vetoes were to be used rarely; only if there were serious 

objections mostly having to do with Constitutional disagreements 

with Congress. The President has the right to choose however he 

wants to veto. But the idea of using a Constitutional power like the 

veto as a way to essentially leverage Congress to pass full budgets, 

I do not think they probably could have imagined that. But the 

main thing they could not have imagined is the massive shifting 

of a power within the separation of powers to the executive branch. 

The fact is that that forces the Congress, in addition to its inability to pass its appropriations bills, into massive omnibus bills at 

the last moment which, in turn, give the executive massive 

amounts of authority to threaten the veto. 

Mr. KING. Thank you, Mr. Spalding. I would like to turn then to 

Mr. Postell. And your testimony included Article 1 as not set up; 

you called it a non-delegation principle in Article 1. So take this 
70 

non-delegation principle to its extreme for us. Does that mean 

clawing back a lot of the things that are in the executive branch? 

Does that mean clawing back the rulemaking authority? Does that 

mean reaching into the EPA and bringing the operations out of 

there with the exception of the enforcement and field operations 

into the control of Congress? How do you envision this at its, say, 

taking it to the logical extreme? 

Mr. POSTELL. Yeah, I think that it largely entails some of the 

things you are describing, which means not the abolition of any of 

these programs, not the abolition of any of these regulations, not 

the abolition of any of these agencies; but rather transferring certain authorities that have been given to those agencies back into 

the legislative branch. 

So, for instance, Congress set up multiple departments and multiple agencies from the very beginning. But those agencies and 

those departments were executive or administrative, which meant 

they had powers such as investigation, prosecution, and enforcement. But they were not lawmaking entities because that was fundamentally the job of Congress. 

So the rules that bind conduct have to be made by the legislative 

branch, otherwise we are not in a representative democracy anymore. 

Mr. KING. Could a Congress, then, establish enforcement forces 

to carry out such actions? 

Mr. POSTELL. I think so, yes. 

Mr. KING. That would be my conclusion from listening to this. I 

wanted to take it to that level because this Committee and this 

Task Force, I believe, wants to look at the full breadth of this so 

that we can come at what is a reason judgment of the people, and 

we want to restore the power to the people in the end. 

So I just quickly, Mr. Capretta, the tools that Congress has to 

enforce today against an executive branch how long is that list and 

what are they? 

Mr. CAPRETTA. The tools to restrain executive spending authority 

you mean? 

Mr. KING. To restrain an executive branch, an over exuberant executive branch, that might be operating outside the Constitution. 

Mr. CAPRETTA. Well I think the budgetary powers should be restrained, so I would look at the list of programs that have permanent spending authority now. And some of that has been done by 

Congress, most—I mean that has been done by Congress. So I 

would not put it necessarily in a Constitutional question. But many 

statutes have delegated the spending authority to the Congress. 

I think it has just become a pattern and a practice over many, 

many years. And it was done originally for programs that had a 

benefit associated with it and people wanted some certainty. But 

it has gone well beyond that to a lot of discretionary programs that 

are now getting mandatory funding, including agencies of government. I would target those first. 

Mr. KING. Thank you, Mr. Capretta. My time has expired and 

now recognize the gentleman from Tennessee. 

Mr. COHEN. Thank you, Mr. Chair. Mr. Spalding, you responded 

to the Chairman’s question about how you thought the Founding 

Fathers would have looked at the President who vetoed a bill be-
71 

cause he did not agree with all the appropriations. So you can kind 

of go back and envision what the Founding Fathers were thinking, 

I guess. What do you think the Founding Fathers who had a threefifths clause for slaves in it would have thought about an AfricanAmerican President? Women voting? Or Blacks and Whites eating 

together? 

Mr. SPALDING. I think you are—sorry, I think you are correct in 

questioning the ability to envision what the Founders thought. I 

think you are absolutely right with that. We constructed it as best 

we can. I think the point of the three-fifths clause, given that that 

was introduced by abolitionists at the convention, was a move 

against slavery, was their intention, and that is what Frederick 

Douglas thought. So I think the intention on that one is actually 

pretty clear. 

I think your point you are getting at, however, is correct which 

is that meanings of these things do change, and the Constitution 

and the intentions of the Founders should not be so rigid as they 

do not allow those changes. But my point is that that is where Congress especially comes in. Congress has the necessary and appropriate clause. Congress has those implied powers to make those adjustments. And it is within the legislative branch where those 

things are best solved not, in my opinion, by an executive who is 

unitary or a judiciary which makes binary decisions. That is what 

lawmaking means. 

Mr. COHEN. Not to get off on a tangent but yeah the abolitionists 

were for three fifths so that they would not get full population—— 

Mr. SPALDING. The South wanted one for one, which means they 

their selves would get more representation in Congress and the establishment object to that. 

Mr. COHEN. Both sides took as a given that slavery was something that was appropriate proper and not to be challenged—— 

Mr. SPALDING. That is right. If you read the transcripts of the 

convention, including Madison’s writings in the Federalist papers, 

there was a lot of objection to slavery in the Constitution and the 

compromise—— 

Mr. COHEN. But it lost. The compromise—the Constitution did 

not outlaw slavery. 

Mr. SPALDING. It made compromise with institution but set it on 

its road to ultimate extinction, which was Lincoln’s position. It was 

a compromise in principle; that was, Frederick Douglas argues, not 

pro-slavery. So now it ensures the historical record is clear. 

Mr. COHEN. You in your testimony describe the 1960’s and 1970’s 

as an era which gave birth to big government, because during that 

time the Federal Government assumed responsibility of the wellbeing of every American. Can you tell me what you believe the 

Framers would have thought—you have told us what you thought 

about maybe slavery, but what would they have thought about civil 

rights legislation that prohibits racial discrimination in public accommodations? And do you think civil rights laws, legislation of 

this nature, which the Supreme Court has upheld as a exercise in 

congressional powers under the Commerce Clause, comport with 

what you contend the Framers’ views were of limited government? 

Mr. SPALDING. I think the crucial point here, again, is that in the 

1960’s and 70’s you saw—you did see a ramping up in change of 
72 

the nature of what government was actually doing as a practical 

matter. The content of those things civil rights, environmental law, 

education I am not here to debate. I think the Federal Government’s being involved in civil rights is a monumental important 

move in American government, and in American society that would 

have been agreeable to the American Founders, on the same 

grounds that I answered my previous question. 

But that did change the operational nature of our government. 

And it changed it such that it introduced a new form of governing, 

which the progressives call the administrative state, which we are 

trying to grapple with today. And that changed the nature between 

the legislative and executive competition such that I think today 

we have an executive with a—with having been delegated a lot of 

power by Congress, and a large apparatus underneath that executive. Whether they are Republican or Democrat has a lot of leeway 

to do things with or without specific congressional legislative authority, using discretion, using—looking at poorly written laws, and 

now seemingly to get away with the ability to directly act against 

something that was clearly stated in the law. 

Mr. COHEN. The simple fact that we refer to the founders of our 

country as they were, as the Founding Fathers, negates over half 

of the population because they could have been founding mothers. 

But the fathers put the mothers in a second rate class just as they 

did Black individuals, just as the people who could not afford to 

pay property tax did not own property. The fact is the Constitution, 

which has gone on for many years and is a great document, was 

not written by infallible human beings. It was written by people 

White male property owners who were the elite, who wanted a society that protected their interests, and did it well. 

This country has changed much and Jefferson even wrote about 

Constitutions should not be seen as never changing. That they 

should not be like a child in clothes that the child then grows out 

of and needs new clothes. You need to change as the times change. 

The process of amending the Constitution is very burdensome, and 

sometimes the legislature to see that the society which has evolved 

is properly taken care of has to give and delegate to the executive 

authority to carry out laws when the Congress is not here and for 

the larger government that exists with the difficulties that expire 

today. 

I yield back my time. 

Mr. KING. Thanks gentleman from Tennessee. And recognize the 

Chairman of the full Committee from Virginia, Mr. Goodlatte. 

Mr. GOODLATTE. Thank you very much, Mr. Chairman. Mr. 

Spalding, the issue is not whether or not the Constitution should 

not be changed over time, the issue is who changes it and how is 

it done, is that not right? 

Mr. SPALDING. That is correct. And to go back to this point the 

Founders were not infallible but they created a framework, we call 

the Constitution in its structure, which has served us well to this 

day. It is precisely the responsibility of Congress as the legislative 

branch closest to consent and—— 

Mr. GOODLATTE. And Congress—— 

Mr. SPALDING [continuing]. To make those adjustments. 
73 

Mr. GOODLATTE. Right and Congress, by two-thirds votes in the 

House and the Senate, passed the 13th Amendment, which ended 

slavery; and Congress by two-thirds votes in the House and the 

Senate. And, by the way, then going to the states for ratification 

by three quarters of the state legislatures in each case extended 

the right of citizenship to people who had previously been slaves. 

And Congress, by virtue of the 19th Amendment, extended the 

right to vote to women, all of which properly should have been 

done. 

We would probably agree with the gentleman from Tennessee 

that these took too long to occur. They were wrong in the first 

place. But the Constitution itself was created with a device to make 

those changes. Does the Constitution give the President of the 

United States the authority to make those changes without the 

consent of the people through their elected representatives or without seeking to have the Constitution changed? 

Mr. SPALDING. No, absolutely not. Nor does it give that power to 

the judiciary. Those two institutions, especially executive, are there 

for particular purposes to act in light of legislative action through 

the lawmaking process. That is why precisely Congress is the first 

branch and it is the primary branch as intended by the Founders. 

Mr. GOODLATTE. Is there anything in Professor Vladeck’s testimony that you would like to respond to? 

Mr. SPALDING. Well I think it is interesting the extent to which 

there is actually a lot of agreement here in a certain way. The difference being that he thinks it is a good thing whereas I would 

probably think it is a bad thing. When the executive does not have 

authority he is not free to act as he chooses. There is a lot of ambiguity in the laws how they are written, there is—they are interpretive debates. 

But short of that the executives cannot do whatever they want. 

I would strongly encourage this Task Force to actually flesh out his 

three types of distinctions between—of executive actions and focusing on those that are the most problematic in here. 

Mr. VLADECK. Well, I am in agreement with that. 

Mr. GOODLATTE. And point of fact we are always going to have 

differences of interpretation of laws, and even of the Constitution 

itself between the executive branch, the legislative branch, and the 

judicial branch. But what we are about here is recognizing that 

over time, for a variety of reasons, the growth of the size of the 

Federal bureaucracy, the transfer of power by the Congress to that 

bureaucracy by passing laws that contain with them massive regulations, and other actions taken by the Congress, the Congress’ 

powers are diminished. 

The Congress is the body of the three most close to the people 

because all of us are directly are elected by the people. And the 

House very sensitive because every 2 years we are up for re-election. Only two people in the entire multi-million person executive 

branch are elected by the people, the President and the Vice President. And no one on the United States Supreme Court is directly 

elected by the people. 

So the issue before this Task Force is to determine how best to 

restore those powers to the United States Congress, not whether 

there are not going to be differences of opinion; sure they are. But 
74 

what ways can the Congress assert itself to make sure that when 

it recognizes that it passed laws that are being misinterpreted by 

a President, that they are able to restore their authority. 

Mr. SPALDING. That is why looking at this process, we refer to 

it as a separation of powers, is so crucially important, not as a 

legal technical matter on this or that specific thing, but as a general matter. This body should act as Constitutional institution in 

reclaiming those powers. And that should be true whether it is a 

Democratic Congress, a Republican Congress, and a Democratic 

President, or a Republican President. If you do not have that back 

and forth you have no check, and if you have no check, you have 

nothing to prevent the executive or the judiciary from doing as they 

wish and going forward. 

Mr. GOODLATTE. Let me briefly go to Mr. Postell and Mr. 

Capretta and ask you what do you think are the best reforms for 

us to consider that would restore the role of Congress as originally 

understood? 

Mr. POSTELL. Well, I think, as I tried to suggest in my written 

and oral testimony, that Congress needs more leadership from 

within the Congress in order to ensure that it is not following leadership outside of the Congress. 

Mr. GOODLATTE. Mr. Capretta? 

Mr. CAPRETTA. I would get a list of—pardon me. I would get a 

list of all the programs that have now gotten permanent spending 

authority, and especially the—outside the major entitlements, 

which I do not think will be changed. And look at those that have 

some spending authority that does not require them to come back 

to the Congress on a regular basis and review those as—to see if 

they are appropriately getting that funding or not, and change the 

statute and require those—many of those programs to get annual 

funding from the Congress. 

Mr. GOODLATTE. Thank you very much. Thank you, Mr. Chairman. 

Mr. KING. Gentleman returns his time and the Chair will now 

recognize the Ranking Member of the full Committee from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. Let me ask Professor 

Vladeck to respond to some of the responses that we have heard 

from your fellow witnesses. 

Mr. VLADECK. Sure. I mean, I guess I just have two brief points. 

The first is I think you have heard a lot of consensus that the best 

solution is legislation. Right, that the best solution to Congress reclaiming its institutional role is for Congress to legislate more often 

and more aggressively. And with regard to Chairman King’s point 

about the veto, it is worth stressing that President Obama has vetoed nine bills in his tenure. If that keeps up, that will be the fewest by a two-term President since James Monroe. 

So, it is not exactly like this is a President who has been over 

aggressive in wielding the veto pen. Whether or not we might agree 

or disagree about the terms and the reasons for vetoing. 

Briefly, on the founding era, sort of understanding the delegation, I think it is a bit of an overstatement to suggest that Congress never delegated power to the President in the early years. 
75 

One of the areas of my expertise is the use of the military. And 

if you look at the early statutes regarding the use of the military 

in domestic emergencies, they were full of delegations to the President to decide for himself when an emergency had arisen to decide 

how best to respond to the emergency. To figure out which forces 

to use and let me suggest to the Task Force, this was for a good 

reason. At the founding, Congress was out of session for most of 

the year, right. Congress was a part-time concern. And so, when, 

as in the case of the whiskey rebellion, you had domestic disturbances that arose when Congress was out of session. There has to 

be delegations of authority to the President, less to be unable to respond and to protect the public order. 

So, Mr. Conyers, I think my basic response is that I think there 

is a lot of common cause among the panelists that the real solution 

here is legislation. We might disagree about which legislation we 

would put first. For example, I might prioritize an AUMF for ISIL 

over some of the other bills that my fellow witnesses might 

prioritize. But I do not think the history is clearly as against the 

current constitutional structure as some of the questions have suggested. 

Mr. CONYERS. Let me just ask in your written testimony, you discussed the difference between the feasible and indefeasible executive power. Now, why, in your view is a separation of powers violation based on the misuse of defeasible power less pernicious than 

an inappropriate claim of indefeasible power by the executive 

branch? 

Mr. VLADECK. Sure. I mean, I think that the basic answer for 

that is again, the role of Congress. If the President is asserting defeasible power in the way Congress disputes. Congress can pass 

legislation to ring it in and the President’s own theory would require that he defer to the statute. Indefeasible power in contrast 

is the President’s claim over the authority to not be bound by a 

statute. In that case, nothing Congress does can move the ball. The 

only thing that can happen is the courts could strike it down. 

And I think this is what we saw, for example, in the early Supreme Court case I reference in my testimony, Little v. Barreme, 

where Chief Justice Marshall went out of his way to say the reason 

why a particular naval capture during the Quasi-War with France 

was unlawful was because Congress had legislated. Had Congress 

not legislated, the President might have had more power. 

So, that is why I think there is a lot more concern in an indefeasible case because in that context, the President is effectively disabling Congress from acting, as opposed to just waiting for Congress to act. 

Mr. CONYERS. Do any of your three fellow witnesses want to add 

to the comments that were made by Professor Vladeck? Both of 

you, okay. 

Mr. SPALDING. Again, I was struck by the amount of agreement, 

but we should see the striking disagreement here. The claim is not 

made that Congress cannot, under any circumstances, delegate authority. The question is what amounts of that authority and under 

what circumstances. There are clearly differences, but I think the 

point is that at some point, which I assert occurs sometime in the 

’60’s or ’70’s, we have crossed a Rubicon such that the amount of 
76 

delegation across the board in different areas, now with different 

agencies giving them their own ability to raise their own money, 

has effectively created a circumstance where the lawmaking power 

has been delegated over to those in a way that I find objectionable, 

both in terms of violation of separation of powers and broadly it is 

a violation of the Constitution. 

Mr. POSTELL. As Professor Vladeck suggested that the historical 

record is not as conclusive as I suggested in my testimony. He 

notes the existence of legislation early in American history where 

Congress said, ‘‘When such and such an event occurs, X will happen and the President gets to decide whether the event has occurred.’’ 

That is what we call contingent legislation. All legislation is contingent legislation. That is not a delegation of legislative power. It 

is a delegation to say, ‘‘When X happens, then the law is triggered 

and the executive gets to act.’’ So, I would not point to those examples as illustrations of legislative delegations of legislative power. 

Mr. CONYERS. Could I ask if Professor Vladeck has any closing 

comment? 

Mr. VLADECK. And I just—I dispute the notion that everything 

changed in the 1960’s. The first major administrative agency was 

created by Congress in 1887. That is the Interstate Commerce 

Commission. The Federal Government, gets a massively more expansive during the Second World War than modern administrative 

state is first upheld by the Supreme Court in 1932. So, I do not 

think we can look at the ’60’s as the moment where things went 

off the rails. If we really think that Congress has abdicated its constitutional responsibility by giving all this power to the administrative state, that is perfectly fine, but if that happened, it happened 

in 1887 and has been going ever since. 

Mr. CONYERS. I thank the Chairman. 

Mr. KING. The gentleman yields back the balance of his time. 

The Chair would now recognize the gentleman from California, Mr. 

Issa. 

Mr. ISSA. Thank you, Mr. Chairman. I think I agree with Professor Vladeck. 1887 probably is when the Founding Fathers were 

gone and forgotten and we, Congress, deciding that it was a lot of 

work and summers were hot here, decided that, ‘‘Well, what the 

heck? Let them do it. We still got the power of the purse.’’ 

Since before I came to Congress, I think all but two people on 

the dance probably—people still thought they could shut down the 

government by not funding and everything would be taken care because, of course, the executive would capitulate. We know that not 

to be true. It is the most impotent power we have, apparently, is 

the power of the purse. Proven by the impotency of those who shut 

down the government and then panic when, what a surprise, the 

government shuts down. 

I am going to take a little different tact and Mr. Chairman, I ask 

unanimous consent that a sample of the 17 letters I sent on December 13, 2012 be placed on the record. This particular one is addressed to Attorney General Eric Holder. 

Mr. KING. Without objection, so ordered. 

[The information referred to follows:] 
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78 
79 
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Mr. ISSA. Thank you. During a different part of my service, my 

job was oversight, and overreach, mismanagement, abuse of power 

is the primary jurisdiction of Congress through oversight to determine. Now, this particular letter, I will use and I am going to ask 

each of you a couple of questions related to it. This one happens 

to make a point that there is a rampant problem within the government that government officials at high and not so high level are 

failing to comply with the Federal Records Act and circumventing 

the requirement that their emails and other communications be 

kept under the Federal Records Act. 

Now, that includes, Secretary Hillary Clinton, we now know at 

an abusive level. She simply had none and left the government 

with 100 percent of those documents. It included one of the key figures in Solyndra, a fellow named Jonathan Silver who wrote and 

this was included in the letter to the attorney general as an example of something we should be careful about. In his email, he said, 

‘‘Do not ever send an email on DOE email with a personal email 

address. That makes it subpoenable.’’ 

In fact, a person who has never been punished, went out of his 

way to advise others how to circumvent the oversight of Congress 

by eliminating the very existence of the documents that would be 

necessary. 

Now, December 13, 2012 is interesting only in that I asked 17 

Cabinet level officers about the private use of email. One of them 

was Secretary Clinton, who, of course, did not answer. And her successor, Secretary Kerry, answered erroneously, not admitting that 

obviously his predecessor had used it widely and left with all of 

them. 

Oddly enough, Eric Holder also did not respond during his tenure and later responded essentially in the negative. We now know 

that Eric Holder actually emailed from his personal email, oh, 

sorry. Email—was aware of the personal emails, but in his case, 

another part of this was, I asked if you were using any pseudonyms 

because that also had been a tendency over at EPA and he did not 

mention that he used Kareem Abdul Jabbar’s true name as his 

false email. Damned if know. There you go, thank you, John. 

So, my question to each of you and I am going to get to professor 

too is, since the Congress appears not to have the tools to hold 

them accountable, is not the most important thing we do to build 

the tools to hold these executive branch officials accountable up to 

and including the ability to get a quick redress in the courts. 

And I will close with this and then I want each of your answers, 

Brian Terry was murdered in Arizona in 2010. In January 2011, 

this Congress was lied to about the Fast and the Furious. As of 

today, we are still in the court. Have not even gotten to appeal the 

judge’s ruling to get the documents related to it. It that acceptable 

and should not this Committee’s primary remedy for this to get an 

expedited ability to get to the courts, so that if, in fact, Professor 

Vladeck is right, and these are just misunderstandings and disagreement, that, in fact, they can be arbitrated fairly. Mr. Spalding? 

Mr. SPALDING. Thank you, Mr. Issa. I agree with your overall 

point about rebuilding the tools. And I also agree with your point 

about the subpoena power and being able to get a quick decision 
82 

from the judiciary. I think you are right about that, so yes, but I 

would say as a general matter, I do not think Congress’ powers to 

purse are impotent. I think there are some great possibilities. 

So, I would include in terms of rebuilding the tools also, rebuilding your day-to-day tools, which is going to give you control over 

the executive, so that you do oversight before, in the early writing 

of legislation. That will make your oversight later much easier. Mr. 

Postell, quickly because I did kind of use all the time. 

Mr. KING. Okay, Mr. Capretta. 

Mr. CAPRETTA. I would just agree with Matthew on the power of 

the purse that done right—if it is just all or nothing. If you just 

try to shut down the entire Federal Government, of course, that becomes a cataclysm, but I think if the Congress starts to reassert 

its role in limits on individual appropriations across the board and 

reassert that in the appropriations process, agency-by-agency, program-by-program, so that those programs do not have as much discretion and they have to come back to the Congress more regularly, 

you will get more control. 

Mr. VLADECK. I will just say very briefly, I am a big fan of Judge 

Bates’ 2008 ruling in House Committee of the Judiciary v. Miers, which I—— 

Mr. KING. So am I. As a matter of fact, I hope Mr. Conyers is 

still a fan of that since it was in his favor. 

Mr. VLADECK. But just to be clear, just to amplify briefly, if I 

may. I think the reason why that opinion makes so much sense is 

because at that point litigation had become the last tool to avoid 

potentially holding a member of the executive branch in contempt 

unnecessarily, and so I think there are remedies that can be exhausted within this body before resorting to the courts and this is 

exactly what Judge Bates understood in that ruling. 

Mr. ISSA. Mr. Conyers, I know my time is expired, but is that 

your recollection that you went to court rather than holding someone in contempt? Was it not that you held them in contempt and 

that gave you the ability to go to the court. I just want to make 

sure we make the record straight and that was your action. 

Mr. CONYERS. I believe that is correct. 

Mr. ISSA. Thank you, thank you Mr.—— 

Mr. CONYERS. Can we hear Mr.—Professor Vladeck’s comments 

on that because he was vigorously shaking his head. 

Mr. KING. The gentleman’s time has expired, however the Chair 

would recognize the gentleman from New York for his 5 minutes. 

Mr. ISSA. Before that we hear Professor Vladeck’s comments on 

that last thing too. Of course, Mr. Chairman. 

Mr. VLADECK. All I would say is if I recall correctly, the posture 

of that case was a declaratory judgment action by the Judiciary 

Committee to litigate Ms. Miers claim of executive privilege in anticipation of whether she could be held in contempt. So, we had not 

yet been held in contempt when the declaratory judgment action 

was brought. 

Mr. KING. The gentleman’s time has now finally expired and we 

recognize the gentleman from New York for his 5 minutes. 

Mr. NADLER. Thank you. I appreciate that clarification. Let me 

ask first, Professor—oh, what is it? Capretta. You testify about 

Congress’ permanent appropriate to things like Social Security and 
83 

Medicare and various other things. This is a bad thing because we 

give up our power. 

Now my first question was, so in other words, you think we 

should abolish Social Security and Medicare and Medicaid. But 

then you said, ‘‘No, you would not suggest that, but we ought to 

bring these programs under control by programmatic limits by additional spending control, et cetera.’’ But what you are saying is 

and tell me why I am wrong in this, is that the only way for Congress to avoid what you see as the evil in these permanent appropriations, as you put them, is to put automatic clauses into effect 

that would have the effect of cutting Social Security automatically, 

or cutting Medicare automatically, unless Congress from time-totime stepped in to change that. 

Mr. CAPRETTA. Congress could have a lot of different ways of 

going about this. I would start with the list of programs that have 

mandatory spending authority goes well beyond the big three, 

which I would put Medicare and Medicaid and Social Security into 

that category. There are many other programs that have it. 

For instance, let me give you an example. There is an administrative agency in the Department of Health and Human Services, 

called the Centers for Medicare—Medicare and Medicaid Innovation. 

Mr. NADLER. Administers to Medicare. 

Mr. CAPRETTA. No, this part of HHS does not administer Medicare per se. What they do is run a series of demonstration programs to test new approaches to organizing and paying for medical 

care under both Medicare and Medicaid. It is a demonstration part 

of the Medicare program and Medicaid as well. It gets a $10 billion 

appropriation every 10 years in perpetuity. So, every 10 years, it 

is going to get $10 billion automatically from the Treasury and 

does not ever have to come back to the Congress again. It is in 

the—— 

Mr. NADLER. Except in 10 years. 

Mr. CAPRETTA. It continues indefinitely and on a permanent 

basis. And then the funding can then be used to test any number 

of different things, which they can then take nationwide and implement both Medicare and Medicaid. Really open-ended authority to 

change drastically how the program is run. I think it is delegated 

way too much authority to this one agency. So, I would—— 

Mr. NADLER. You do not argue that it is unconstitutional, you 

argue that it is wrong as a matter of policy. 

Mr. CAPRETTA. Right and just for the record, I am not a professor 

and I am not a lawyer so, you know, my ability to comment on this 

constitutional aspect is very, very—you can take it as an amateur, 

so I am not going to, but I think it is a statutory—— 

Mr. NADLER. Professor Vladeck, we have heard about the impermissible—the basic subject of the hearing seems to be the impermissible delegation of powers by Congress. Does adherence to separation of powers require that the Congress not delegate rule-making authority to the executive branch? And obviously, can you think 

of Supreme Court jurisprudence—any Supreme Court jurisprudence that supports this—what I would characterize as an extreme 

view of the Constitution? 
84 

Mr. VLADECK. I can, but it is 80-years old. Right, so there was 

for a time, a period where the Supreme Court recognized something called the Non-delegation Doctrine that died in 1937. There 

was a case a couple of years ago where—— 

Mr. NADLER. Now, is the switch in time that saved nine? 

Mr. VLADECK. Among other amendments, it happened in 1937. 

There was a case a couple of years ago where the parties tried to 

get the Supreme Court to reassert the Non-delegation Doctrine and 

the court politely declined. I think partly because it is very hard 

to figure out where the line would be if one were to have a judicially enforceable Non-delegation Doctrine between what Congress 

may and what Congress may not allow—— 

Mr. NADLER. Let me ask—thank you. Let me ask Mr. Spalding, 

I think. Do you think that as part of this Non-delegation Doctrine, 

for instance, Congress has delegated and it has been somewhat 

controversial? We have delegated powers to the EPA and we have 

said that, ‘‘Thou shalt prohibit or regulate toxic chemicals in the 

air.’’ 

Do you think it would be practical or the better practice for Congress to say in each case well, CO2 can be six points per million 

and nitrous oxide, seven points per million and when we discover 

some new chemical that comes out of manufacturing something 

else that may be poisonous, Congress must act on that, the EPA 

cannot say that is noxious. 

Mr. SPALDING. The point I am making is not that the delegation 

argument as understood by the courts, which gave up on it back 

in 1930 is somehow to be revived. I think the court should rethink 

that. I am making more practical argument when it comes to Congress. Congress is a co-equal branch of government that—— 

Mr. NADLER. Yes, but my question is are you saying that—you 

are saying that we have and not just you, but I mean, the general 

political thing here is a lot of people say Congress has delegated 

too much power and they have focused in, for example, on the EPA 

and others too, my question is, would it be practical or right to require Congress, or even if not right, is it mandated by the Constitution to require Congress to say, ‘‘Okay, every time a manufacturing 

process introduces a new chemical into the atmosphere,’’ Congress 

must—it is okay until Congress comes along and says, ‘‘That chemical cannot be introduced into the atmosphere or that chemical can 

only be introduced at six parts per trillion.’’ 

Do we have the expertise or could we possibly develop the expertise to do that? Or is there something wrong with saying to the 

EPA, ‘‘You make such determinations. We are telling you generally 

keep poisons out of the atmosphere.’’ 

Mr. SPALDING. I think the Constitution does mandate Congress 

to keep control of the lawmaking process. 

Mr. NADLER. And so, your answer is yes. 

Mr. SPALDING. And the details of which are to be returned by 

Congress as to how far to go. 

Mr. NADLER. So, your answer to me is yes. 

Mr. SPALDING. If you look at all the places it has done, it has 

gone way too far. 
85 

Mr. NADLER. So, your answer to me is yes. Congress would have 

to say how much—which chemicals and how many parts per trillion are okay in the atmosphere until—— 

Mr. SPALDING. No. 

Mr. NADLER. Why not? Where would you go on? 

Mr. SPALDING. I think the problem now is that there is—the line 

is not, ‘‘Do not do nothing. You can do everything.’’ The line is 

somewhere in the middle and Congress should have done a better 

job at determining that. 

Mr. NADLER. Okay, so you think we have not done a good enough 

job. Last question, Professor Vladeck, Mr. Spalding asserts that 

there is no doubt that there is something qualitatively different to 

how this President is using and abusing his powers. Do you agree 

with his statement that there is something different about the current administration’s use of rulemaking authority or exercise of executive authority and if so, can you explain what that something 

is? 

Mr. KING. The gentleman’s time has expired, the witness will be 

allowed to answer the question briefly. 

Mr. NADLER. Thank you. 

Mr. VLADECK. Thank you, Mr. Chairman. All I would say very 

briefly is I think that if there is a difference, it is only because of 

the paucity of legislation, which has left the President with, I 

think, a lot more areas where there is less legislative direction. 

Otherwise, I do not think it is a difference in degree or kind. 

Mr. NADLER. Thank you. 

Mr. KING. Thanks the witness. The gentleman’s time has expired. The Chair recognizes the gentleman from Florida, Mr. 

DeSantis for his 5 minutes. 

Mr. DESANTIS. Thank you, Mr. Chairman. I am listening. I hear 

some of the witnesses talking about having three co-equal branches 

of government and I—as I look at the Constitution and read, you 

know, the Federalist Papers, it seems to me that we have three 

separate competing branches of government. I do not know that it 

is right to say that the Founders believed that they would be equal. 

I mean, for example, Madison said that the legislative authority 

would be the predominant branch and Hamilton said, ‘‘The courts 

were by far the weakest of the three branches.’’ And so, Mr. Spalding, am I wrong to say that, you know, we do have, you know, demarcations of legislative, executive and judiciary authority, but 

they are competing branches. But the Founders did not necessarily 

think the courts would be equal to the legislative power. 

Mr. SPALDING. I agree with you. That is right. The distinction I 

would make is that when it comes to exercising their constitutional 

responsibilities, each branch should carry out its constitutional responsibilities according to its work. So the court does it in terms 

of cases of controversy that come before it. The executive does it 

in executing the law and Congress, which is the primary branch of 

government by intention, must do it by legislating. 

So, in that sense, they have different responsibilities and they 

compete on those. But all three are taken an oath to uphold the 

Constitution and act according to its dictates. 

Mr. DESANTIS. And so, I mean, in just looking at how the 

branches are exercising authority now in terms of—there is cer-
86 

tainly, I do not think anyone could say that they are exercising 

equal authority. I mean, I think the executive is by far the most 

powerful because you have all the executive powers that are in Article 2 of the Constitution, but then you have mostly—most of the 

lawmaking or policymaking is done in the executive branch now. 

I mean, is that accurate? 

Mr. SPALDING. It is approximate, I would say that is yes. The 

Congress has given over many of its broad authority to make laws, 

to officers that fall under Article 2 who pass what fall into—are 

laws. When you look at the amount of regulations and the extent 

of regulations and the effect on most people’s day-to-day lives, 

those are the laws. This is why most Americans, when they want 

to get regulatory relief, they do not come here as much anymore. 

They go to the executive branch. They know where the bread is 

buttered in this institution. 

Mr. DESANTIS. Or they come to us and ask us to write letters 

begging the executive branch to not add that to do. That is an idea 

which is probably not the—— 

Mr. SPALDING. I mean, we can argue ad infinitum as to minute 

details and judicial points and this, that and the other, but as a 

practical matter, I would argue that patent the obvious where laws 

are made in this country nowadays. 

Mr. DESANTIS. Is there historical precedent we talk about this 

particular administration seems to me one of the things they 

seemed to have done is go back to statutes that have been on the 

books for decades and usher in really significant new policy 

changes that have a really significant effect. I mean, across the energy sector, financial services, all these other things. Is that out of 

the ordinary or has that been done in modern American history to 

that extent? 

Mr. SPALDING. I think the Founders recognized very clearly the 

ambition would be a driving force in American politics. You can go 

back to Richard Nixon who appointed the first czar, right. Presidents will always to try to find ways to get around the laws of Congress. It is not this particular President, although this particular 

President has figured out a way to do it actually quite well. And 

he is doing it very creatively and it just so happens you have now 

a coincidence between the intentions of a bureaucratic body, which 

is driving toward a certain policy outcome and executive who actually is in agreement with that. That, coming together, I think is a 

new circumstance. 

Having said that, a Republican President will come in and will 

feel a lot of those same pressures to use those authorities they are 

given to assume and go after their policy objectives, which is why 

I think Congress, right now, should be thinking all this through in 

a sort of—in terms of asserting its authority regardless of who the 

next President is. 

Mr. DESANTIS. Sometimes the press will report or say, ‘‘Oh, you 

know, in this case we are probably going to assert a claim about 

the Obama administration.’’ But he has issued less executive orders 

than these other Presidents. I mean, the number of executive actions, is that a good measure to just tell us whether—— 

Mr. SPALDING. I am not sure it is the number going back to the 

point about the veto. He has not actually done that many vetoes. 
87 

It is not the number of things. It is the intention and what is being 

done with these powers that amounts to essentially driving a legislative agenda without the authority of Congress. That is the violation. 

Mr. DESANTIS. I mean, you could do a dozen executive actions before breakfast if they are within Article II or authorized by statute. 

Then, that is just a decision the President is making. The issue is, 

is there executive authority that goes outside the Article 2 powers, 

correct? 

Mr. SPALDING. That is correct. 

Mr. DESANTIS. Thank you. I yield back. I think I am out, but 

whatever is remaining. 

Mr. ISSA. For the 10 seconds left, Mr. Conyers, colloquy, do you 

recall the vote on the floor of contempt during the issue over firing 

the nine U.S. attorneys? My staff has reiterated that there was a 

contempt vote on the floor. You might remember that Mr. Boehner 

and a number of Republicans walked out during that one. 

Does that refresh your memory? It is a small point, but it is one 

in which I think it is important that it was not a—it was not an 

arbitrated Bates decision. They got to Bates because you bought to 

the floor a contempt which passed, if you recall. 

Mr. CONYERS. Where is this leading? 

Mr. ISSA. Well, I would just like the record clear, Professor 

Vladeck seems to want to talk about the Bates’ decision being some 

sort of declaratory judgment that was arbitrary. We do not have 

the authority to get to the court except through that contempt vote. 

That was your means for getting it. And it is extreme and it happened to take very little time compared to other ones, but it did 

take some time. 

Mr. CONYERS. You agree with that, do you not, Mr. Vladeck? 

Mr. VLADECK. What I was trying to suggest perhaps in-artfully 

to accomplish my study is just that the lawsuit was a declaratory 

judgment action. In the past, when the House had held an individual member in contempt, it was that member’s, or it was that 

person’s, or that witness’ appeal that came rise to judicial review. 

In this case, it was—— 

Mr. ISSA. In this case, the U.S. attorney refused to prosecute and 

Chairman Conyers then had to go and ask the court to allow him 

a civil remedy and it took about a year for Bates to make a decision 

that we had that authority. And it was landmarked because it is 

the only way that we get any authority right now because we have 

no explicit statutory authority, but it was in fact, the hubris of 

President George W. Bush, not only saying he could fire them, but 

that he would not send Harriet Miers and then when held in contempt, told the U.S. Attorney through the Attorney General not to 

comply with an act of Congress. 

So, I think it is important when I talk about some impotence of 

our authority and the need for more that we admit that even with 

the extraordinary issue that Chairman Conyers did, we ultimately 

still took more than a year and the case came to a settlement only 

because George W. Bush was leaving office and did not want to 

leave it to a successor. 

Mr. VLADECK. And also—— 
88 

Mr. KING. The gentleman from Florida’s time has expired and he 

has departed the room or he would reclaim his time and so, we will 

now recognize the gentleman from Georgia, Mr. Johnson, for his 5 

minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. Mr. Spalding, is it not 

true that the delegation of legislative power to the executive branch 

has been effectuated by allowing the use of executive orders by the 

President? Would you agree to that? 

Mr. SPALDING. In the sense that the delegation have become 

more and more complicated? 

Mr. JOHNSON. Well, no, I am just saying generally speaking, it 

is because Congress has not challenged the use of executive orders 

that the use of executive orders has resulted in the delegation of 

legislative power to the executive branch. Is that—— 

Mr. SPALDING. Well, there are different ways in which the President can claim authority to issue an executive order as he carries 

out the law. 

Mr. JOHNSON. I am just talking in terms of executive orders. 

That is one of the ways that the legislative branch improperly delegates its authority to the executive branch. 

Mr. SPALDING. By delegating more authority to the executive 

branch, the executive has more room and more authority to issue 

executive orders, yes. 

Mr. JOHNSON. And that is what has happened with President 

Obama. As you say, this President does it quite well. Is that correct? 

Mr. SPALDING. In some cases, when he is given legislation that 

allows for broad interpretations or different interpretations easily 

enough, that gives him more ability to issue a broader executive 

order. The sheet amount of—— 

Mr. JOHNSON. Do you believe that this President has abused the 

executive order? 

Mr. SPALDING. No, I think the answer is yes, but I would divide 

it as in different categories. 

Mr. JOHNSON. Let me ask you this then, since you believe the 

President has abused his executive order authority if there be any. 

Do you happen to know how many executive orders this President 

has issued during his 7 years in office? 

Mr. SPALDING. Formal number, no. 

Mr. JOHNSON. Do you know how many President George Walker 

Bush issued during his 8 years? 

Mr. SPALDING. I would assume probably as many or more. 

Mr. JOHNSON. Why would you assume more? 

Mr. SPALDING. Because the way that the executive carries out, 

executes the law is by using executive orders. That is how he instructs the body of people under him to do things. 

Mr. JOHNSON. So, you believe that George Bush was a greater 

abuser of the executive order than President Obama? 

Mr. SPALDING. The sheet number of executive orders does not 

necessarily equal abuse or non-abuse. It is just the use of it. It is 

a legitimate activity of the President to issue an executive order. 

Nothing wrong with it per se. 

Mr. JOHNSON. Would it surprise you to know that Reagan issued 

more executive orders than George W. Bush? 
89 

Mr. SPALDING. No. 

Mr. JOHNSON. It would not surprise you? Why not? 

Mr. SPALDING. Especially in a two-term President, they are going 

to issue a lot of executive orders. The issuance of an executive 

order is a perfectly legitimate activity. 

Mr. JOHNSON. Well, now President Obama is a two-term President who has issued fewer executive orders than President Reagan 

during his 8 years in. Is that surprising to you? 

Mr. SPALDING. No, it is what the executive order covers, what is 

looking to—— 

Mr. JOHNSON. Well, let me ask you, what executive orders has 

President Obama issued that are far more expansive than those— 

any of those that say, Ronald Reagan issued? 

Mr. SPALDING. I think the question is if an executive order is 

issued—— 

Mr. JOHNSON. Can you answer that question? 

Mr. SPALDING. I am trying to. I would agree with the professor 

at the other end and I would divide it into different categories. I 

think when the, you know, some executive orders are very straightforward—— 

Mr. JOHNSON. My time is running out. Let me ask you this question. Do you believe that when President Lincoln issued the executive order on January 1, 1963, that is, excuse me, 1863 known as 

the Emancipation Proclamation, was it a user patient of legislative 

authority? 

Mr. SPALDING. No. Because Lincoln made it very clear he was 

acting under his authority during a civil war. 

Mr. JOHNSON. How about when H.W. Bush and Reagan issued 

executive orders extending amnesty to family members not covered 

under the 1986 Immigration Law. Was that a user patient of legislative authority and executive overreach? 

Mr. SPALDING. I would have to go back and look at the particulars, but the President does have certain abilities to give legal forgiveness. 

Mr. JOHNSON. Well, what I have noticed from you is that Republicans are okay with the use of executive orders, but President 

Obama is not and with that I will yield back. 

Mr. ISSA. Mr. Chairman, I would ask you to have his consent. 

Mr. KING. Without objection. 

Mr. ISSA. Well, the unanimous consent—unanimous is on putting 

in the record from the Cornell Library, a very definitive document 

by Josh Chafetz; it is on executive branch contempt of Congress, 

which covers the Harriet Miers case. 

Mr. KING. Without objection, the documents will be entered into 

the record. 

[The information referred to follows:] 
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Mr. KING. Thank you, Mr. Issa. The Chair would now recognize 

the gentleman from Michigan, Mr. Bishop. 

Mr. BISHOP. Thank you Mr. Chair. Thank you to those of you 

who have spent the time with us today. Very interesting subject. 

I do think I do want to start by building on what my colleague from 

Georgia was alluding to with regard to executive orders and ask 

Mr. Spalding are executive orders the only way that the executive 

can infringe upon the powers of Congress? And so, it really is not 

the best judge. The number of executive orders is not the best 

judge of whether or not an executive has infringed upon the role 

of Congress. There are other ways. 

Mr. SPALDING. Yeah, I think if you look at the totality of all of 

their actions. 

Mr. BISHOP. Yeah, departments, administrative agencies. 

Mr. SPALDING. Appointments—how they deal with their departments, how they conduct their activities, how they exercise and 

deal with treaties—all of the above. I think we are in an unusual 

situation which we are taking a step back, as I understand it and 

looking at this from an institutional point of view. And I think Congress looking at it, both in terms of previous administrations and 

this administration. I do not think it is necessarily tied to a Democrat or Republican, in my opinion. There has been over time a rising activity in the executive branch, large in my opinion because 

of the amount of authority they have been given to use their capacities. Executive orders being a great example of that, to direct that 

bureaucracy for their own political purposes. 

On the one hand, that is perfectly natural in a political system. 

An executive will do that, but from a separation of powers point of 

view, that leads me to conclude that the real law-making authority 

that should be controlling those decisions and the executive executing those policies has been moved away from toward a different 

form of governing. 

Mr. BISHOP. Thank you very much and I would commend you on 

this, what I think is the bible of constitutional scholar information 

and this book that you wrote, We Still Hold These Truths, is just 

an excellent, I think intro into these issues and review of these 

issues. So, thank you for doing that. I want—would like to ask Mr. 

Capretta, if I could, Mr. Vladeck suggested that the best solution 

to this situation to—is to pass a law which would ameliorate the 

passing of executive orders or whatever issues are that Congress 

could resolve this all by passing a law. Is that practical in today’s 

world? Do you view that as a solution to what we are seeing today 

in the overreach? 

Mr. CAPRETTA. I do largely agree with the point, which is that 

I think much of the concern that has been expressed this morning 

has to do with things that were passed in previous laws. And so, 

you are probably going to have to do some of the hard work of 

going back into those previous laws and say, ‘‘Did we go too far in 

delegation of some interpretative authority and including spending 

authority?’’ 

Mr. BISHOP. There are many bills in Congress right now addressing these issues. 

Mr. CAPRETTA. Yes. 
107 

Mr. BISHOP. There is a practical problem here in that those laws 

have to be signed by the very executive that we are attempting to 

address his constitutional authority. I mean, I do not know how we 

can get the executive to—in states, we have a different state legislation. We have a thing called, the Committee on Administrative 

Rules, Joint Committee on Administrative Rules and the role of 

that entity is to bring any rules that are promulgated by departments or un-elected bodies to this—in front of this Committee. And 

they can decide whether or not it is an appropriate solution. 

In Congress, strangely enough, we just do not have that power 

to do that. We cannot stop a rule promulgated by a rogue committee or an agency that has decided to go off on a different course. 

And frankly, it may not even matter whether or not they are going 

in a direction that is good for the environment in which they are 

regulating. What can we do in this environment so that we can 

capture—recapture that power in Congress? 

Mr. CAPRETTA. This is very complicated, but look, if you put everything one big bill at the end of the year with everything all in 

it, you lose a lot of leverage because then you will shut down the 

government if that one bill goes down and so, I think part of the 

problem is to begin to take these on piecemeal, one at a time, in 

smaller bites and the President cannot—certainly can veto lots of 

things if he wants to, but he cannot veto everything. 

And so, you know, Rome was not built in a day and so, you are 

going to have to assert your authority one-by-one, issue-by-issue 

and win the argument. This program should have a limitation. It 

is reasonable to impose one. It is okay to do that. Congress will be 

here if you want to get more money, you come back to us. Asking 

for that type of authority across the board in a lot of programs, it 

is going to be hard to argue against it. 

Mr. BISHOP. Thank you. I yield back. 

Mr. KING. The gentleman yields back. The Chair will now recognize the gentleman from Florida, Mr. Deutch. 

Mr. DEUTCH. Thank you, Mr. Chairman. I want to just go back 

and focus on comments that we have heard in various ways 

throughout this hearing. The responsibility of Congress to make 

adjustments, the leadership of Congress, the role that Congress 

plays and I want to just focus on a couple of areas where the President has taken executive action and I have not heard a lot about 

it, so—but I thought I would throw it on the table. 

When the Senate—oh and I learned, Mr. Chairman, I have 

learned a couple of things today also, that one, that the—that we 

should be grateful for the three branch clause in the Constitution 

that it was in fact strongly anti-slavery and respectful of equal 

rights of everyone and second, that we do not have three co-equal 

branches of government. 

And I do not know if my college in central Florida was sending 

a message to our current President or this being Super Tuesday 

was perhaps sending a message to the leading Republican candidate for President. Time will tell on that. But I have to ask if you 

look at immigration, an area where the President has received 

from many on this Committee harsh attacks and you go back the 

actions in the Senate and the passage of the Rubio Schumer legislation that provided a path to citizenship that made massive in-
108 

vestments in border security that was the product of compromise 

and then you look at what has happened in the House and this 

fundamental question when it is the House’s responsibility, Congress’ responsibility to act. 

And you see that in this House and in this Committee in particular, there have been no efforts to craft any sort—first of all, no 

efforts either in this Committee or bi-House leadership to bring up 

that bipartisan legislation from the Senate and give us a chance to 

debate it, amend it and perhaps address this serious issue. 

And so, when the President took his—issued his deferred action 

for childhood arrivals, which, of course, was aimed for undocumented immigrants who entered the country before their 16th 

birthday and before June 2007 to get this renewal work permit and 

exemption from deportation and then that was extended, of course, 

when the President expanded that to parents of U.S. citizens and 

legal permanent residents. We know that Congress does not authorize enough funds to DHS to deport 11 million people. And it 

is a big discussion in our debate. 

Again, leading Republican candidate thinks it is exactly what we 

ought to do. So, it seems to be catching on. We will have plenty 

of time to debate that, but we do not do it. So, of course, there are 

going to be decisions made by the executive branch on how to allocate those funds that Congress provides. 

And why would it not be within the discretion of the President, 

in this case, to allocate those funds in a way, since Congress refuses to act, utterly refuses to act. Why would it not be in the discretion of the President to take action to recognize that perhaps 

since we have limited funds that Congress is giving us, why not 

use those limited funds to go after criminals and those who pose 

a danger to our society, instead of tearing families apart, taking 

kids who came here, who know no other country as their home, 

other than the United States and deporting them? That is one 

issue. 

Second issue I would touch on if the issue of guns and gun violence. Now, Congress, I agree has a responsibility to that and I if 

I had a nickel for every time in this—in our Judiciary Committee 

that we were told that there is no reason to take action because 

there are plenty of laws on the books, well, I would—I think I 

would have sufficient funds to address many of the problems that 

we face in our society because that is all we hear over and over. 

And yet, in this case, you have a law from 1968 that prohibited 

anyone other than licensed gun dealers to engage in the business 

of dealing firearms, a loophole that we have been trying to close 

that Congress has refused to take up. 

By the way, as an aside, I point out, refused to take up a single 

piece of gun safety legislation since New Town. Despite the ongoing 

moments of silence to take place in the House week after week 

after week, when there is another mass shooting. 

And so, Congress refused to act and the President took executive 

action to clarify what the private sale of guns are. And to help close 

that loophole and the President did it because Congress failed to 

act. I do not understand how that has been characterized as overreach when the fundamental issue here, whether it is on immigration or on guns, or on protecting our environment or a whole host 
109 

of other issues that when Congress, as we have heard over and 

over and over this morning has a responsibility to act. 

Well, when Congress fails to act and there is a necessity to use 

and enforce and interpret existing law and that is what the President does, it strikes me that it is exactly what the President ought 

to do. Unfortunately, I am out of time. I yield back. 

Mr. KING. The gentleman’s time has expired. The hearing, no 

question, the Chair would recognize the gentleman from Texas, Mr. 

Poe. 

Mr. POE. Thank the Chairman. Thank you gentlemen for being 

here. It is interesting that my friends on the other side like to use 

the same excuse that I heard as a judge down in Texas. I would 

have a person come to court charged with theft and occasionally, 

they would say, ‘‘Well, judge, everybody steals in Texas. Give me 

a break.’’ And the defense being, ‘‘Well, other people do it, so let 

me go.’’ 

And, you know, I am a little a tired of hearing if George Bush 

did it, so it is okay for the President to do it. This issue is not 

about who does it. It is what position violates the Constitution in 

overreach. 

Now, we can go all the way back to Andrew Jackson if you want 

to. Some historians think that his invasion into Spanish territory 

of Florida to kill the Seminoles who were raiding my friend, Mr. 

Johnson’s now home state of Georgia, that executive action was illegal because the President did not get authority from Congress. 

Andrew Jackson also, when Texas was a country, in some states 

still is, to Morris, Texas, independent state, in case you are wondering, gentlemen, 180 years. Texas is an independent country, 

took Congress forever to decide whether or not to recognize Texas 

as a country. Andrew Jackson said, ‘‘Sure, I recognize them. They 

are an independent country.’’ And there was debate about whether 

or not that was legal or not. 

So, executive overreach has been debated a long time. And in my 

opinion, Congress just sits back and lets it happen. All of you—you 

probably memorize the Constitution and the way I read it, the Article 1, Section I, the first word—the first word is all, ‘‘All legislative 

powers are granted shall be vested in Congress of the United 

States.’’ It does not say, ‘‘All legislative powers are granted and 

vested in Congress of the United States unless Congress fails to 

act, then the President can pass his own legislation.’’ 

There is no exception clause. It is the word all. Famers, Madison, 

probably had a good reason for putting the first word in the first 

article, all, all legislative power. The question has been Congress 

sometimes does not use its authority. Does that give the President 

the authority to say, ‘‘Okay, I am going to make my own rules?’’ 

Probably not. 

I mean, historically, the way I understand the Constitution was 

written, Article 1 deals with the legislative branch of government 

because it was supposed to be the most powerful. Then Article 2 

deals with the executive branch and the Article 3 deals with the 

judiciary, which was really supposed to be the weakest branch of 

government. 

I think as a practical matter today, in 2016 the judiciary is the 

strongest branch of government because they make laws too. And 
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then you got the President and you got the legislative branch, 

which basically is very weak because we do not do a lot. 

And we have brought some of this on ourselves because when the 

lawmaking authority comes around, we decide to make some bureaucracy to enforce that law. Some of those bureaucracies are legislative. Some of those are done by the administration. We tell 

them to go out and make that law happen and then we criticize 

the bureaucrats for doing the job that we told them to do because 

we will not do it. 

So, I say all that to say, is this—do you agree, Mr. Postell, I will 

ask you this question, do you agree or not? Failure of Congress to 

act and failure to act really is an action. Failure to deal with gun 

violence is an action by Congress. They have made their decision. 

We have made our decision. But is there an exception clause in the 

Constitution that gives the executive the right to go ahead and go 

it his way. Like Burger King, have it your way because those legislators, those Members of Congress, they do not act. 

Mr. POSTELL. There is nothing in Article 2 of the Constitution 

that gives the President the power to make law and that is because 

of the reasons you have just indicated. Article 1 gives all of the legislative powers to Congress. So, any excuse that relies upon Congress’ inaction cannot be used to justify the granting of a new 

power, the assuming of a new power by the President. So, if Congress does not act, there is no law to execute. 

Mr. POE. Even if the action by the President is a good idea. 

Mr. POSTELL. Yeah, I think it is important to separate results 

and policy from process. And a lot of the comments this morning 

in conversation is centered around, if you insist upon this sort of 

process, you might jeopardize the kind of results we want. But good 

process is important in and of itself. Especially a process that says 

we are going to rule ourselves throughout own elected representatives in the legislative branch. 

So, regardless of the outcomes we produce, it would be a good 

idea to preserve the principle that our elected representatives 

makes the law. 

Mr. POE. Thank you, Mr. Chairman, I yield back. 

Mr. KING. The gentleman yields back and the Chair would now 

recognize the gentlelady from California, Ms. Chu. 

Ms. CHU. Oh, Professor Vladeck, in your testimony, you state 

that some forms of executive action are appropriate when Congress 

is silent or vague on the matter. In recent years, has Congress 

through its inaction created an environment that necessitates unilateral executive action and can you give us examples that stand 

out in your mind? 

Mr. VLADECK. Sure. I mean, I think we will probably disagree 

among all of us in this room about which are the best cases, but, 

you know, I think the ISIL example that I reference in my testimony is actually a very powerful one. When Congress enacted the 

UMF in 2001, it did not even know that Al Qaeda was responsible 

for the September 11th attack, so it left up to the President to determine who was responsible. 

This administration is now claiming that, that statute enacted on 

September 14, 2001, somehow covers the use of military force in 

countries far afield of Afghanistan, against groups completely 
111 

unconnected to Al Qaeda. And I think that is a very powerful example of where the absence of subsequent legislation has all but 

invited both this President and his predecessor to actually take this 

pre-existing statute and run with it in ways the original justices of 

that statute probably would have been very surprised to see. 

Ms. CHU. And under what constitutional authority does the 

President to have act in cases such as that? 

Mr. VLADECK. Well, in that case, I mean, I think the problem 

there is that, that is an issue where the President is arguing that 

he has delegate statutory authority. And so, my colleagues who 

think that authority cannot be delegated in the first place have a 

bit of an easier time because they say, of course, that delegation 

was impermissible in the first place. 

I, instead, am left to say I do not believe that is a fair reading 

of the statute and then it comes down to a disagreement between 

me and, for example, administration lawyers about what a particular statute means. That is the kind of disagreement that we see 

all the time. It is one that this body could fix very easily by just 

passing a new statute. 

Ms. CHU. Now, in instances where Congress perceives that the 

executive branch is overstepped its authority, what can Congress 

do to restore the balance of power? 

Mr. VLADECK. Sure, as I say in my testimony, I think in most 

of the cases we are talking about, new legislation would do most 

of the work. The only time where I do not think legislation would 

be effective in scaling back the kinds of Presidential excesses that 

some have criticized, is where the President is claiming the authority to defy acts of Congress and to not be bound by acts of Congress. 

And frankly, we have seen very little of that argument over the 

past 7 years. So, I think in other context, in all of the circumstances, new legislation could do a lot of the work. 

Ms. CHU. And how would you respond to the critics that argued 

that the President would simply veto any attempts by Congress to 

redress executive overreach? 

Mr. VLADECK. Sure, I mean I think there are two responses. I 

think the first is, this President has not used the veto pen that 

often. As I mentioned earlier, he has vetoed the fewest bills of a 

two-term President since James Monroe, so in 200 years, but second, if there came a point where the President was using his veto 

powers in a way that was not just to achieve partisan policy outcomes, but actually was jeopardizing the institutional role of Congress, it would be my fervent hope that Members across the aisle 

and form a super-majority to override the veto, there is a long history in this country of Congress overriding vetoes on areas where 

I believe the President was acting unconstitutionally. 

Ms. CHU. Now, there are witnesses that argue that by creating 

a permanent appropriations for programs such as Social Security, 

Medicare and Medicaid, Congress has seated too much power to the 

executive branch. What are the benefits of creating permanent appropriations for certain safety net programs like these? 

Mr. VLADECK. Sure and I think there are a number of benefits. 

I think first and foremost, it provides stability to those programs. 

That they are not dependent on the annual budget process in ways 
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that I think other programs are often held up in the balance at the 

last minute. 

Second, I think it allows Congress to actually not spend so much 

time in the nitty-gritty of whether X amount of money should be 

appropriated for Y medical procedure under Medicare, for example. 

You know, so I think the time it frees from Congress, the stability 

it creates for the program, the ability to allow the executive branch 

to use its expertise to figure out how best to implement these programs, I think are all benefits of such standing appropriations. 

Ms. CHU. Many of our witnesses are arguing that the Constitution precludes Congress from delegating its rulemaking authority 

to the executive branch to carry out the will of Congress. Is it unconstitutional for Congress to ask obtaining assistance from the 

other branches to execute Congress’ will? If so, what are the examples? 

Mr. VLADECK. I mean, frankly, I think this is where some of the 

other witnesses might differ. I do not think the Constitution includes a non-delegation principle and I think I am with the Supreme Court which has not recognized one since 1936. So, you 

know, I think Congress cannot arrogate the power of the other 

branches. 

Congress cannot commandeer the other branches, but do far as 

this is a cooperative enterprise, I do think Congress has a role, a 

very powerful role that I think it has just stopped exercising as frequently in involving the other branches, especially the executive 

branch in the implementation of Federal policy. 

Ms. CHU. And what is the standard that Congress must follow 

in enlisting the executive branch’s assistance? 

Ms. VLADECK. I mean, the basic rule of the Supreme Court as 

given, as long as there is any intelligible principle to govern the 

delegation. So, as long as there is some reasoned basis on which 

the executive branch is exercising the power delegated to it, that 

is somehow related to the underlying statute is permissible. You 

know, we can sit around and debate whether there should be a 

stronger connection, whether there should be a more tighter rule. 

I guess, you know, insofar as our differences are primarily about 

policy, I do not think that rises to the level of a separation of powers problem. 

Ms. CHU. Thank you. I yield back. 

Mr. KING. The gentlelady’s time has expired. The Chair recognizes the gentleman from California, Mr. Peters. 

Mr. PETERS. Thank you, Mr. Chairman. I appreciate the hearing 

and the chance to hear from the witnesses. It has been very illuminating. And what struck me in all the testimony that there was 

an agreement that this is really not a Task Force on Executive 

Overreach as much as it is on legislative under-reach. As every single one of the witnesses agrees that Congress could, if we decided 

to, take a hand and correct this imbalance. 

I heard, you know, legislative tort, inertia, indifference, quiescence, inability, unwillingness, and delegation. These are all things 

that Congress is responsible for doing and we can do. So, at the 

conclusion of this hearing, I am left with the impression that probably what we should do is get back to work on legislation. Legisla-
113 

tion from the House of Representatives with which the Senate 

would agreement the President might sign. 

We have not taken up the authorization for use of military force. 

There was a lot of human cry about whether President Obama 

should have the power to take care of this. I am willing to take 

that up. The Congress has not been willing to take about it. We 

had an immigration reform bill in the Senate in 2013, which got 

69 votes. 

Immigration is one of the areas in which the President has been 

active and has been criticized for being so active. But we did not 

even get a vote on that in the House of Representatives. That was 

a bipartisan immigration bill. We could have taken that up right 

here, maybe amended it, but we were prevented from that vote on 

the House floor. 

There is a regulatory reform provision that came through the 

House. It has no chance of passing this—through this—the President’s signature. I got an idea that we could achieve some of the 

same objectives with the President’s cooperation. Tax reform is 

something in which actually, I agree with many of my Republican 

colleagues on some of the tax policy issues. 

Chairman Camp, when he was Chairman of Ways and Means 

issued a plan to start working on that. Speaker Boehner killed it 

the next day. So, we are not going to talk about it. Really, what 

we have here is, as a witness has suggested, is a failure of Congress, not something to criticize President Obama about. And, you 

know, sometimes, I think it is a little bit like me asking myself, 

‘‘Why is my hair not combed?’’ It is because I did not comb it. We 

have all the power we need to take care of this. 

Mr. Capretta said on the issues on entitlement spending or social 

insurance that we should take those statutes and amend them. 

And that is something we have the power to do. I think Mr. Postell 

said, ‘‘What we needed is more leadership within Congress.’’ Well, 

I am ready for that and I think what we could do probably rather 

than have hearings about what Congress is not doing, we should 

just get about the business of doing Congressional work and with 

that I yield back. 

Mr. KING. The gentleman yields back. This concludes today’s 

hearing. Thanks to all of our witnesses for attending. Without objection, all Members will have 5 legislative days to submit additional written questions for the witnesses or additional materials 

for the record. 

I thank the witnesses and I thank the Members of the audience. 

This hearing is adjourned. 

[Whereupon, at 12 p.m., the Task Force was adjourned.] 

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