```

[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]

                 EXECUTIVE OVERREACH IN DOMESTIC AFFAIRS 
                  (PART II)_IRS ABUSE, WELFARE REFORM,
                            AND OTHER ISSUES

=======================================================================

                                HEARING

                               BEFORE THE

                     EXECUTIVE OVERREACH TASK FORCE

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 19, 2016

                               __________

                           Serial No. 114-71

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]         

      Available via the World Wide Web: http://judiciary.house.gov
      
      
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                        U.S. GOVERNMENT PUBLISHING OFFICE
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                      COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
LAMAR S. SMITH, Texas                ZOE LOFGREN, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia                SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan

           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.,         STEVE COHEN, Tennessee
Wisconsin                            JERROLD NADLER, New York
DARRELL E. ISSA, California          ZOE LOFGREN, California
LOUIE GOHMERT, Texas                 SHEILA JACKSON LEE, Texas
JIM JORDAN, Ohio                     HENRY C. ``HANK'' JOHNSON, Jr.,
TED POE, Texas                         Georgia
JASON CHAFFETZ, Utah                 JUDY CHU, California
TREY GOWDY, South Carolina           TED DEUTCH, Florida
RAUL LABRADOR, Idaho                 CEDRIC RICHMOND, Louisiana
RON DeSANTIS, Florida                SCOTT PETERS, California
KEN BUCK, Colorado
MIKE BISHOP, Michigan

                     Paul B. Taylor, Chief Counsel

                    James J. Park, Minority Counsel
                            
                            
                            
                            C O N T E N T S

                              ----------                              

                             APRIL 19, 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    14
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................    15

                               WITNESSES

Cleta Mitchell, Partner, Foley and Lardner
  Oral Testimony.................................................    17
  Prepared Statement.............................................    20
David E. Bernstein, George Mason University Foundation Professor, 
  George Mason University School of Law
  Oral Testimony.................................................    32
  Prepared Statement.............................................    35
Emily Hammond, Associate Dean for Public Engagement & Professor 
  of Law, The George Washington University Law School
  Oral Testimony.................................................    47
  Prepared Statement.............................................    49
Andrew M. Grossman, Adjunct Scholar, Cato Institute, and Partner, 
  Baker & Hostetler LLP
  Oral Testimony.................................................    53
  Prepared Statement.............................................    56

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Steve Cohen, a Representative 
  in Congress from the State of Tennessee, and Ranking Member, 
  Executive Overreach Task Force.............................5
                       deg.OFFICIAL HEARING RECORD
          Unprinted Material Submitted for the Hearing Record

Report titled ``No Evidence of White House Involvement or Political 
    Motivation in IRS Screening of Tax-Exempt Applicants,'' submitted 
    by the Honorable Steve Cohen, a Representative in Congress from the 
    State of Tennessee, and Ranking Member, Executive Overreach Task 
    Force. This report is available at the Committee and can also be 
    accessed at:

    http://docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=104807

 
 EXECUTIVE OVERREACH IN DOMESTIC AFFAIRS (PART II)--IRS ABUSE, WELFARE 
                        REFORM, AND OTHER ISSUES

                              ----------                              

                        TUESDAY, APRIL 19, 2016

                        House of Representatives

                     Executive Overreach Task Force

                       Committee on the Judiciary

                            Washington, DC.

    The Task Force met, pursuant to call, at 2:29 p.m., in room 
2141, Rayburn House Office Building, the Honorable Steve King 
(Chairman of the Task Force) presiding.
    Present: Representatives King, Goodlatte, Issa, Gohmert, 
Jordan, Poe, Gowdy, Labrador, DeSantis, Buck, Bishop, Cohen, 
Conyers, Johnson, and Deutch.
    Staff Present: (Majority) Paul Taylor, Chief Counsel, 
Subcommittee on the Constitution and Civil Justice; Zachary 
Somers, Parliamentarian & General Counsel, Committee on the 
Judiciary; Tricia White, Clerk, Subcommittee on the 
Constitution and Civil Justice; (Minority) James Park, Minority 
Counsel, Subcommittee on the Constitution & Civil Justice; 
Susan Jensen, Senior Counsel; Matthew Morgan, Professional 
Staff Member; and Veronica Eligan, Professional Staff Member.
    Mr. King. The Executive Overreach Task Force will come to 
order. Without objection, the Chair is authorized to declare a 
recess of the Task Force at any time.
    And I'll begin with my opening statement.
    At our first Task Force hearing, we explored how Congress 
itself, over the past many decades, has acted or not acted in 
ways that have tended to cede its legislative power to the 
executive branch.
    Contrary to our Founders' original intentions, our second 
hearing focused on just--on just some of the many examples in 
which the President has exercised sometimes sheer will to wrest 
legislative authority from the United States Congress.
    Our third hearing today explores even more such abuses. One 
of the most egregious abuses in the executive branch's handling 
of the Internal Revenue Service, which was used to restrict the 
ability of organizations dedicated to educating people on the 
Constitution and the Bill of Rights to obtain task-exempt 
status that they are allowed by law.
    A report by the Treasury Department's own Inspector General 
found that organizations that were involved in educating on the 
Constitution and the Bill of Rights were singled out for 
adverse tax treatment by the Internal Revenue Service. Other 
groups with the term ``progressive'' in their name were not 
subject to the same adverse treatment.
    Adding to the horror of the IRS' abuse of its regulatory 
authority to favor political supporters of the President is 
research indicating that politically biased favorable treatment 
may have significantly affected the 2012 Presidential election. 
Researchers at the American Enterprise Institute and the 
Harvard Kennedy School of Government found that Republican 
candidates in the 2010 elections enjoyed huge success when 
organizations educating people on the Constitution and the Bill 
of Rights were left unfetterred by the IRS.
    That cycle brought the Republican party some 3 million to 6 
million additional votes in House races. As the researchers 
concluded, that success was not the result of a few days of 
work by an elected official or two, but it involved activists 
all over the country who spent the year-and-a-half leading up 
to the midterm elections by volunteering, organizing, donating, 
and rallying.
    Much of these grassroots activities were centered around 
501(c)(4)s, which, according to our research, were an important 
component of Republican success at cycle. The researchers 
concluded that if those grassroots activities had continued to 
grow at the pace seen in 2009 and 2010 and had their effect on 
the 2012, it would have been similar to that seen in 2010. They 
would have brought the Republican party as many as 5 to 8\1/2\ 
million votes compared to Obama's victory margin of 5 million. 
But that didn't happen.
    Instead, in March of 2010, the IRS decided to single out 
for special adverse treatment groups that educated citizens on 
the Constitution and the Bill of Rights that contained the word 
``patriot'' in their names or that otherwise indicated subjects 
unappealing to the current Administration. For the next 2 
years, the IRS approved the applications of only four such 
groups, delaying all others while subjecting the applicants to 
highly intrusive, intimidating requests for information 
regarding their activities, their membership, their contacts, 
their Facebook posts, and private thoughts.
    As the researchers found, ``As a consequence, the founders, 
members, and donors of these adversely affected groups found 
themselves incapable of exercising their constitutional rights, 
and their impact was muted in the 2012 election cycle.''
    The IRS abuse had cost these organizations thousands of 
dollars in legal fees and swallowed the time these all-
volunteer networks could have devoted to voter turnout, to 
outreach in Black and Latino neighborhoods, and other events to 
educate the public on the Constitution and the basic concept of 
political and individual liberty.
    Adding insult to injury, a Federal lawsuit brought by 
organizations harmed by the IRS' misconduct has been marred by 
delays on the part of Federal Government attorneys so 
unreasonable that the Sixth Circuit Court of Appeals wrote as 
follows, in an opinion issued just last month. Because of its 
significance, I will quote it in length: ``Among the most 
serious allegations a Federal court can address are that an 
executive agency has targeted citizens for mistreatment based 
on their political views. Not--no citizen, Republican or 
Democrat, Socialist or Libertarian, should be targeted or even 
have to fear of being targeted on those grounds. Yet in this 
lawsuit the IRS has only compounded the contact that gave rise 
to it.
    ``The plaintiffs seek damages on behalf of themselves and 
other groups whose applications the IRS treated in the manner 
described by the Inspector General. The lawsuit has progressed 
as slowly as the underlying applications themselves.
    ``At every turn, the IRS has resisted the plaintiffs' 
request for information regarding the IRS' treatment of the 
plaintiff class, eventually to the open frustration of the 
District Court. At issue here are the IRS be-on-the-lookout 
lists of organizations allegedly targeted for unfavorable 
treatment because of their political beliefs. The District 
Court ordered production of those lists and did so again over 
an IRS motion to reconsider.
    ``Yet almost a year later, the IRS still has not complied 
with the court's orders. The lawyers in the Department of 
Justice have a long and storied tradition of defending the 
Nation's interests and enforcing its laws, all of them not just 
selective ones, in a manner worthy of the Department's name. 
The conduct of the IRS' attorneys in the District Court falls 
outside that tradition.''
    Those are chilling words--close quote. Those are chilling 
words from a Federal appeals court which found the Justice 
Department under this Administration has failed to enforce the 
Nation's laws and fairly--and has failed in a manner unworthy 
of the Department's name.
    I look forward to hearing from all our witnesses here today 
on these and other issues.
    The Chair would now recognize the Ranking Member for his 
opening statement.
    Mr. Cohen. Thank you, Mr. Chair.
    Today's Executive Overreach Task Force, or President 
Obama's still President--we shall continue the lashings--
hearing is to congressional hearings what a clip show is to a 
television series. In the absence of original idea or coherent 
focus, we simply go and re-air snippets of tired old story 
lines from long ago, past episodes; Seinfeld Part 1, or TBT, 
hash tag.
    It is simply sad that at a time when our Nation and our 
world face a host of daunting challenges, the Zika virus, 
problems in the Middle East, this Congress has chosen to spend 
its time and taxpayer money on political theater.
    It is telling that today's hearing has no focal point. Its 
only purpose appears to be to give conservative critics the 
opportunity, once again, to assert that President Barack Obama 
has acted beyond the law. And as part of a longstanding pattern 
of attempts to paint this President, in particular as somehow 
illegitimate, goes all the way back to the 2008 campaign.
    This is the week that Passover starts on Friday, and we say 
why is this night different from all other nights? Why is this 
President different from all other Presidents? I think we all 
know why. Simply too bad for the critics that the facts do not 
support their arguments.
    On the alleged targeted conservative groups by the Internal 
Revenue Service, extensive investigations by two Congressional 
Committees, the Department of Justice and the Treasury, have 
concluded the IRS did not break the law.
    Indeed, the Justice Department wrote to the Committee on 
October 23, 2015. Its conclusion's worth noting at some length. 
We conducted more than 100 witness interviews, collected more 
than 1 million pages of IRS documents, analyzed almost 500 tax 
exemption applications, examined the role and potential 
culpability of scores of IRS employees, and considered the 
applicability of civil rights tax administration and 
obstruction statutes.
    Our investigation uncovered substantial evidence of 
mismanagement, poor judgment, and institutional inertia, 
leading to the belief by many tax-exempt applicants the IRS 
targeted them based on their political viewpoints. But poor 
management is not a crime. We found no evidence that any IRS 
official acted based on political, discriminatory, corrupt, or 
other inappropriate motives to help support a criminal 
prosecution. We also found no evidence that any official 
involved in the handling of tax-exempt applications or IRS 
leadership attempted to obstruct justice.
    I'd like to ask unanimous consent to include the Justice 
Department's October 23, 2015, letter in the record.
    Mr. King. Hearing no objection, so ordered.
    [The information referred to follows:]
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
                     __________
    
    
    Mr. Cohen. Thank you. Thank you.
    Our Democratic colleagues in the Oversight and Government 
Reform Committee reached similar conclusions after that 
Committee's extensive investigation into this matter. The 
Committee staff report prepared by Ranking Member Elijah 
Cummings concluded that after ``detailed lengthy transcribed 
interviews of 39 witnesses, including Republicans and 
individuals who have no political affiliation,'' there was ``no 
evidence of White House involvement,'' and ``no evidence of 
political motivation on the IRS' part.''
    Unanimous consent to place into the record the Democratic 
staff report on the Committee of Oversight and Government 
Reform entitled ``No Evidence of White House Involvement or 
Political Motivation in IRS Screening.'' *
---------------------------------------------------------------------------
    *Note: The material referred to is not printed in this hearing 
record but is on file with the Task Force, and can also be accessed at:

      http://docs.house.gov/Committee/Calendar/
      ByEvent.aspx?EventID=104807
    Mr. King. Also hearing no objection, so ordered.
    Mr. Cohen. Thank you, Mr. Chair.
    The majority has picked the wrong President to pick on with 
the IRS. It's a long time ago, but all we've got to go back to 
is Richard Nixon. He was real good at using the IRS to punish 
his opponents, and it would be real bipartisan agreement that 
we could have examined him and said, that was a bad time, and 
the IRS was used by Richard Nixon.
    It is taxpayer money that pays for this national defense. 
It is taxpayer money that pays the salaries of Federal law 
enforcement and intelligence officers. It's taxpayers' money 
that pays down the national debt. Taxpayer money that pays for 
Medicare, Medicaid, and Social Security, and crop subsidies. 
And it is the men and women of the IRS that ensure that 
millions of Americans get the refunds and tax credits. And it's 
the men and women of the IRS that ensure that we have the money 
to discuss these and many other critical things.
    As Justice Oliver Wendell Holmes said, taxes are what you 
pay to live in the civilized society. And taxes are fine. 
You've got to have an IRS. The whole idea of abolishing is 
poppycock.
    Like the IRS matter, the litany of other issues the 
majority raises in today's hearing is just to repeat the past 
complaints about agency action. The fact of the matter is the 
administrative process includes numerous checks, including 
judicial review, on an agency's actions and its interpretations 
and authority to act, and critics offer no credible evidence 
that these checks have failed.
    Instead of wasting time, limited time, that we have on a 
hearing about these nonissues, we should be considering 
substantive issues, like how to tackle over-incarceration, how 
to end gun violence, how to help students managing crushing 
student loan debt, and how to help people be part of the 
American Dream, and have a right to vote. Regrettably, these 
issues sit by the wayside while we engage in this purely 
political exercise.
    Further deponent sayeth naught, I yield back the balance of 
my time.
    Mr. King. I thank the Ranking Member of the Task Force.
    And I now yield to the Chairman of the full Judiciary 
Committee, Mr. Goodlatte, from the Commonwealth of Virginia.
    Mr. Goodlatte. Thank you, Chairman King, for convening this 
third hearing of the Task Force on Executive Overreach.
    Following up this last hearing, the topic today includes 
more recent case studies of the abuse of Executive power. And 
I'll focus my remarks on the President's actions regarding the 
implementation of the work requirements and the bipartisan 
welfare reform laws and its unilateral rewriting of Federal 
energy laws.
    In 1996, President Clinton and a Republican Congress signed 
into law the Bipartisan Personal Responsibility and Work 
Opportunity Reconciliation Act, which created the Temporary 
Assistance for Needy Families program, or TANF. This program 
was designed to discourage dependency and encourage employment 
by placing certain restrictions on welfare. TANF provided that 
individuals could only receive benefits for up to 5 years and 
also require recipients to engage in work within 2 years of 
receiving benefits.
    The work requirements in particular were recognized as the 
reason for TANF's success in helping millions of Americans get 
back to work. Welfare roles were decreased by half, and the 
poverty rate for African-American children reached its lowest 
point in U.S. history. Researchers studying the self-reports of 
happiness by former welfare recipients have shown that these 
work requirements increased the happiness of single mothers 
taking part in the program, concluding that ``the package of 
welfare and tax policy changes targeting single mothers and 
generally promoting work increased single mothers' happiness. 
The observed increase in happiness result--appears to result 
from both an increase in single mothers reporting a high level 
of happiness and a decrease in single mothers reporting a low 
level of happiness. The magnitude of the effect appears quite 
large.''
    These new workers confirm what many studies of human 
happiness have shown, and that is that one of the best means of 
achieving happiness is through earned success. As other 
researchers have shown, paid work activities provide social 
contact, a means of achieving respect, and a source of 
engagement, challenge, and meaning.
    The Obama administration, however, in a mere memorandum 
issued by the Department of Health and Human Services, deemed 
it that States no longer had to follow TANF's work requirements 
and could dispense welfare, even if recipients didn't meet the 
TANF's statutory standards.
    In the 1996 welfare reforms, Congress provided a list of 
which statutory provisions the Federal Government could waive, 
and TANF's work requirements in section 407 were not listed as 
waiveable. In the many years since the 1996 act was passed, no 
Administration had ever asserted this authority because the 
statute's clear text allows for no waivers of TANF's work 
requirements. The result, if TANF's--if waivers were fully 
implemented, would be more dependency and less of the sort of 
earned success that leads to greater happiness.
    The Obama administration has also attempted to unilaterally 
impose energy use rules on the States without congressional 
authorization. Initially, 26 States, and now 29 States, asked 
the Chief Justice of the Supreme Court to intervene immediately 
to stop this abuse, and the Supreme Court promptly stayed the 
enforcement of the President's plan pending a resolution of the 
constitutional challenges against it.
    Even prominent liberal law professor, Laurence Tribe, who 
taught President Obama constitutional law at Harvard Law 
School, wrote the following about President Obama's clean power 
plan: ``After studying the only legal basis offered for the 
EPA's proposed rule, I concluded that the Agency is asserting 
Executive power far beyond its lawful authority. Even more 
fundamentally, the EPA, like every administrative agency, is 
constitutionally forbidden to exercise powers Congress never 
delegated to it in the first place. The brute fact is that the 
Obama administration failed to get climate legislation through 
Congress. Yet the EPA is acting as though it has the 
legislative authority anyway to reengineer the Nation's 
electric generating system and power grid. It does not.''
    I look forward to hearing from our witnesses today who will 
discuss these and other abuses of Executive power and the means 
of preventing them.
    Thank you, Mr. Chairman.
    Mr. King. I thank the Chairman, the gentleman from 
Virginia.
    And now I yield to the Ranking Member of the full Committee 
from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Chairman King.
    Members of the Subcommittee, when the Committee first 
established this Task Force, I expressed hope that we could 
work in a substantive and bipartisan manner to address serious 
questions about relationship between the executive and 
legislative branches. I continue to hold out that hope, but I 
am disappointed that so far the Task Force, to me, seems mostly 
to have been the kind of partisan political exercise that I was 
afraid it might be.
    This is especially so coming after hearings attacking the 
President on the Patient Protection and Affordable Care Act and 
immigration and attacking the very notion of regulatory 
agencies themselves. Today's grab bag collection of topics, 
which appear only intended to support the claim that the Obama 
administration is lawless, only deepens my disappointment. To 
begin with, none of the investigations into the actions of the 
Internal Revenue Service in assessing the applications for tax-
exempt status by certain conservative groups has identified any 
illegal conduct.
    In short, despite numerous hearings, witness interviews, 
and document reviews, including by Congressional Committees and 
by the Departments of Justice and the Treasury, no one found 
that the IRS or its employees broke the law. Yet just last 
week, we heard at least two Members of this Task Force call for 
the impeachment of the IRS Commissioner from the House floor. 
And this week, the House will be devoting much of its floor 
schedule to legislation designed to impugn and undermine the 
IRS.
    The real scandal here is the waste of taxpayer money in the 
majority's continued pursuit of this nonscandal. Likewise, 
today's hearings also raises, to me, the unsubstantiated 
specter of the undeserving welfare recipient. Denigrating the 
poor as undeserving is a way to score points, I suppose, with 
some conservative voters, notwithstanding the fact that the 
Administration has the authority to waive work participation 
requirements of the Temporary Assistance to Needy Families 
program.
    Section 1115 of the Social Security Act specifies that the 
Secretary of Health and Human Services may waive certain of the 
requirements for State welfare programs, including those 
requirements the States themselves claim are onerous and may 
even undermine the goals of the welfare amendments enacted in 
1996.
    Indeed, 3 years ago, the House passed legislation to 
prohibit the Secretary of Health and Human Services from 
granting such waivers. That bill, by prohibiting such waivers, 
implicitly acknowledged that the Secretary had such waiver 
authority. But my deeper concern is with this line of attack 
that is that it is simply intended to impugn the most 
disadvantaged in our society for political gain.
    Finally, today's hearings also assail the Environmental 
Protection Agency's authority under the Clean Air Act to 
regulate carbon dioxide emissions by power plants. It's clear 
that section 111(d) of the Act gives the EPA broad authority to 
address not just pollutants that were known at the time of the 
Act's passage, but also new problems as they arose. In fact, 
Congress intentionally gave the EPA the discretion, as the 
expert agency, to elaborate on these criterias and to resolve 
ambiguities in them.
    As protestors in front of the Capitol remind us, 
particularly during an election year, we should be using the 
Committee's time to consider measures that provide real 
solutions. These include, for example, H.R. 885, the ``Voter 
Rights Amendment Act,'' which would help restore fundamental 
protections for voters. And we should address the flood of 
corporate money in our political system as legitimized by the 
Supreme Court's Citizens United decision.
    Nevertheless, I look forward to hearing our witnesses 
today. I welcome them all and I thank them for appearing.
    And I yield back, Mr. Chairman.
    Mr. King. Nevertheless, I thank the gentleman.
    And without objection, other Members' opening statements 
will be made part of the record.
    Let me now introduce our witnesses. Our first witness is 
Cleta Mitchell, a partner in the Washington, D.C., office of 
Foley and Lardner, LLP. And our second witness is Mr. David 
Bernstein, a George Mason University Foundation professor at 
the George Mason University School of Law. He's the author of 
the book Lawless: The Obama Administration's Unprecedented 
Assault on the Constitution and the Rule of Law. It was 
published in November last year. And then our third witness is 
Emily Hammond, professor of law at George Washington University 
School of Law. Welcome. And our fourth and final witness is 
Andrew Grossman, a partner at the D.C. office of Baker and 
Hostetler.
    And we welcome you all here today and we look forward to 
your testimony.
    Each of the witnesses' written statements will be entered 
into the record in its entirety. I ask that each witness 
summarize his or her testimony in 5 minutes or less. To help 
you stay within that time, there's a timing light in front of 
you. The light will switch from green to yellow, indicating 
that you have 1 minute to conclude your testimony. When the 
light turns red, it indicates that the witness's 5 minutes have 
expired.
    Before I recognize the witnesses, it's a tradition of the 
Task Force that they be sworn in. Please stand to be sworn in.
    Thank you.
    Do you solemnly swear that the testimony you're about to 
give will be the truth, the whole truth, and nothing but the 
truth so help you God?
    Let the record reflect that the witnesses have answered in 
the affirmative.
    I now recognize our first witness, Ms. Mitchell, for her 5-
minute testimony.

             TESTIMONY OF CLETA MITCHELL, PARTNER, 
                       FOLEY AND LARDNER

    Ms. Mitchell. Thank you, Mr. Chairman, and Members of the 
Task Force. Thank you for the opportunity to appear here today 
on this very important issue of executive branch overreach.
    And I think it's important, even though there are some 
specific agencies that are listed as the topics about which 
we're to discuss today, and I could spend the rest of the day 
detailing to you the experiences that I've had with and for my 
clients and their experiences with the IRS and the targeting. 
And just to put it in perspective, Congressman Cohen, I've been 
doing this for a long time, helping organizations receive tax-
exempt status from the IRS.
    And in a nutshell, what happened beginning in 2009, that's 
the first client that I had that I realized--began to realize 
something had changed in the fall of 2009. The IRS took what 
used to be a process that lasted 3 to 4 weeks and changed it, 
without any notice to the public, based on targeting and 
selection and really rounding up and branding of applicants, 
and turned it into a process that took 3 to 4 years and created 
burdensome, intrusive, multiple levels and layers of inquiries 
about every internal aspect of the organization's operations, 
such that it chilled the First Amendment rights of hundreds of 
citizen groups and tens of thousands of citizens in the United 
States.
    And I have attached to my testimony today testimony which I 
provided to the House Oversight and Government Reform Committee 
in July of 2014, which conducted a hearing on how to keep it 
from happening again. And I'll just mention three of those 
items, but there are other suggestions in there. And Congress 
has enacted a couple of those things, but there is more that 
needs to be done.
    First, Congress should repeal the requirement that exempt 
organizations disclose their donor list to the government. It's 
a private schedule. It's not public. There's no public policy 
reason for citizens groups to have to turn over their donor 
lists to the Federal Government, to the IRS. And we would urge 
you to please repeal the Schedule B donor disclosure filing 
requirement.
    I would urge you to also enact legislation that creates a 
permanent protection so that the IRS is not--and any IRS 
employee is prohibited by law from utilizing the publicly filed 
campaign finance reports and published reports of donor 
information as a basis for targeting citizens and taxpayers for 
audit. That is--the Supreme Court has recognized the First 
Amendment rights of Americans to make contributions to 
organizations, candidates, and parties of their choice. And 
disclosure is required by law. The IRS should not be allowed to 
use that public disclosure as the basis for targeting people 
for audit or adverse tax activity. So we would urge Congress to 
make that clear in the statute that that is prohibited.
    And, finally, I would urge the Committee and the Congress 
to enact something that the Supreme Court said existed but 
which courts throughout the country have resisted giving life 
to, and that is to provide an individual cause of action that 
citizens and taxpayers would have to pursue individual IRS 
employees and, frankly, other Federal employees who violate the 
constitutional rights of taxpayers and citizens.
    The Supreme Court in the Bivens v. six unnamed Federal 
narcotics agents, the Supreme Court recognized this cause of 
action, but the IRS and the government employees, the IRS 
employees, in the cases that have been filed regarding the 
tax--the IRS targeting scandal, has all said that such a right 
of action does not exist. We urge Congress to clarify and make 
clear that it does exist.
    And then I want to close with something that I think is 
important for Congress to recognize. This is not a partisan 
issue. This is a--the Article I role of Congress is at--is at--
very much at risk with executive branch overreach not just in 
this Administration, but going back for decades. And I have 
five recommendations that I would like Congress to consider 
doing. First--to reclaim its constitutional authority.
    First, I think Congress should abolish the House and Senate 
Appropriations Committees and reassign the funding 
responsibility to the Committees of jurisdiction so that 
funding, oversight, and authorization are handled on an ongoing 
year-in, year-out basis by the Committees of jurisdiction, 
rather than separating them such that oversight and authorizing 
is separated from funding.
    Secondly, I think that Congress should consider repealing 
all general legislative authority delegated to Federal 
agencies. Because what has happened over the last 40 years is 
that Congress has delegated its constitutional obligation for 
enacting legislation and sent that off to Federal agencies and 
then wonders why it is that the Federal agencies are acting 
like the Congress. So I would urge the Congress to repeal the 
general legislative authority that's been delegated and to 
provide that no regulations can be promulgated without prior 
congressional approval.
    I think you should abolish the Joint Committee on Taxation. 
We're never going to get tax reform or any changes that I have 
proposed until and unless you get rid of the Joint Committee on 
Taxation. I've included recommendations that also were in 
testimony a year ago, again before the House Committee on 
Oversight and Government Reform, on how FOIA needs to be 
redefined, the deliberative process, privilege needs to be 
eliminated.
    And, frankly, I would recommend that Congress create within 
the GAO a FOIA watchdog division, and that all the funds that 
are now spent by agencies spending the taxpayers, the millions 
and millions of dollars, telling us things that may not even be 
true, and those funds be reallocated so that when citizens try 
to enforce their FOIA rights, that they actually get a proper 
response and get the documents that the law says they're 
entitled to have.
    And, finally, I would urge Congress to repeal the Chevron 
deference doctrine that provides that when litigants appear 
before the courts of this land to try to hold a Federal agency 
accountable, the court gives--puts the thumb on the scale and 
gives preference and deference to the agencies. Until Congress 
does something about these principles that have evolved over 
the last 40 years, we are not going to see an end to executive 
overreach.
    Thank you.
    [The prepared statement of Ms. Mitchell follows:]**
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    **Note: Supplemental material submitted with this statement is not 
printed in this hearing record but is on file with the Task Force, and 
can also be accessed in this witness's statement at:

      http://docs.house.gov/Committee/Calendar/
      ByEvent.aspx?EventID=104807
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                               __________
                               
    Mr. King. Thank you, Ms. Mitchell.
    I now recognize Mr. Bernstein for his testimony.

   TESTIMONY OF DAVID E. BERNSTEIN, GEORGE MASON UNIVERSITY 
  FOUNDATION PROFESSOR, GEORGE MASON UNIVERSITY SCHOOL OF LAW

    Mr. Bernstein. Thank you, Mr. Chairman, Members of the Task 
Force. Thank you for having me here for this hearing. As the 
Chairman mentioned, I have a book about the Obama 
administration and what I perceive to be its lawlessness I 
document there. But I want to emphasize that, as Ms. Mitchell 
said, the encroachment by the executive branch on the powers of 
the legislature and of the judiciary is something that's been 
going on for a long time. I'm afraid we're reaching a tipping 
point. And for those who think this is solely a partisan issue, 
I would suggest that you consider, when I discuss these issues 
today, how you would feel if a President Trump or a President 
Cruz exercised similar authority when they--if and when they 
became President.
    So I'm going to focus on several examples today of how the 
Obama administration has not only violated the law, which is 
not that uncommon for an executive branch these days, but has 
done so in ways that really pose a threat to checks and 
balances that are meant to evade checks and balances. The 
Administration has not only acted unilaterally without 
congressional assent, which is what has gotten most publicity, 
but in some cases, the one I'm going to discuss today, has 
acted in ways that make it almost impossible for the judiciary 
to get involved and be the final check on the executive branch.
    So my first example involves new government regulations 
that are disguised as mere guidance. Right? So these executive 
branch agencies have all this power and they're supposed to, 
Congress decided in 1940, that in order to enact regulations 
based on relatively broad or vague congressional legislation, 
they need to go through this notice and comment period, go 
through the Administrative Procedure Act, and publish formal 
regulations that are then subject to judicial review.
    But one way of evading that is to just say, well, we're not 
making regulations; we're just issuing guidance. So the example 
I have is in 2011, the Department of Education, Office of Civil 
Rights, sent a Dear Colleague letter to universities around the 
country requiring universities to change the procedures that 
they have for dealing with sexual assault on campus when people 
complain of sexual assault. They were required by this letter 
to lower the standard of proof to find an accused guilty and 
also denying a few students of their due process rights, for 
example, by denying them the right to cross-examine their 
accusers.
    The letter purported to be an interpretation of the Title 
IX amendment to the Educational Act of 1972, but there's really 
no case citations in the letter; there's no formal legal 
analysis. It's just dicta.
    Now, when questioned about this, sometimes OCR said, well, 
these are--this is just guidance. These aren't real 
regulations. However, assistant secretary of the OCR, Catherine 
Lhamon, testified under oath before the Senate a couple of 
years ago, and she said that we expect the recipients of the 
letter--in other words, all universities, that in any way take 
Federal funds--to ``fully comply with OCR guidance.''
    When the government expects full compliance with its 
pronouncements, it needs to go through a notice and comment 
process and create regulations subject to judicial review and 
not just announce these rules in a letter that can't be 
reviewed by anybody.
    My second example of Administration overreach is the use of 
TARP funds to--first, to bail out Chrysler and GM and then to 
use the leverage this gave the government to essentially run 
the day-to-day operations of General Motors for a time. And the 
Supreme Court established a long time ago in Youngstown Sheet 
and Tube Company v. Sawyer in 1951, that economic emergency, 
even when there's a war going on, like the Korean War, does not 
give the President authority to act unilaterally in the absence 
of statutory authority. And the most famous opinion from that 
case by Justice Jackson has come to stand for the proposition 
that the President's power is lowest when Congress has 
specifically denied the President the authority to do 
something.
    So here is a bipartisan issue for you: It was the Bush 
administration in late 2008 that started this. In 2008, 
Congress, of course, passed TARP and said, we want to give 
money to financial institutions. Oh, well, I'll give money to 
car companies we decided too. The House voted yes. The Senate 
said no. The President went ahead and gave the money to the car 
companies anyway.
    The Obama administration came in, instead of withdrawing 
from doing this illegal action, instead gave even more money to 
the car companies and said, by the way, we have a deal for you 
you can't refuse. We're going to tell you who your chairman is 
going to be, who your board of directors are going to be, which 
car models are going to continue, which dealerships are going 
to continue, and there was really no statutory authority 
whatsoever to do this.
    The third example of Obama administration overreach may 
actually be called underreach, the Administration's refusal to 
enforce certain deadlines that are in the Affordable Care Act. 
And they've done so for, basically, political reasons. There 
were some rules that would have required people to get new 
insurance plans that didn't meet Obama--because they didn't 
meet ObamaCare requirements. The Administration just said, oh, 
we're going to postpone that for a few years and asked the 
State insurance commissioners to do so as well.
    They also changed the employer mandate to 50 to 100 
people--50 to 100 employers--employees. They said, you don't 
have to abide by that. And it was because elections were coming 
up, this was unpopular, and they didn't even try to give legal 
analysis. There was no memo. There was no legal analysis. There 
were just blog posts on the HHS Web site. ``Government by blog 
posts,'' one of my former students and now professional 
colleagues calls it.
    This happened even when the Republicans offered to pass 
legislation to achieve the same goal. President Obama said, 
well, I don't want you to pass legislation; I want to do it 
myself. If you pass legislation, I'm going to veto it.
    So my testimony has gone through these three categories: 
Informally regulating through guidance instead of formal 
regulations, exercising massive regulatory authority without 
legislation over GM in the name of combating economic 
emergency, and delaying implementation of duly enacted 
legislation for political reasons. And I fear that if this 
isn't checked, the whole system of checks and balances we have 
is at risk.
    [The prepared statement of Mr. Bernstein follows:]
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                               __________
                               
    Mr. King. Thank you, Mr. Bernstein.
    The Chair now recognizes Ms. Hammond for her testimony.

     TESTIMONY OF EMILY HAMMOND, ASSOCIATE DEAN FOR PUBLIC 
ENGAGEMENT & PROFESSOR OF LAW, THE GEORGE WASHINGTON UNIVERSITY 
                           LAW SCHOOL

    Ms. Hammond. Thank you, Chairman King, Ranking Member 
Cohen, and distinguished Members of the Task Force for the 
opportunity to testify today.
    I'd like to make a call for nonpartisan administrative law. 
And what I mean by that is this: We should want a system that 
permits agencies the flexibility that they need to exercise 
their expertise, while providing numerous mechanisms to ensure 
that they operate within the bounds of their statutory 
mandates. There is room for political decisionmaking within 
those statutory bounds, and we should be very reluctant to 
tinker with administrative law for political purposes, because 
doing so risks a system that operates poorly, regardless of 
which party has the executive branch.
    Our Constitution envisions this kind of system. Congress, 
of course, may provide as much specificity as it wants in 
directing agencies how to carry out their work, but this 
institution simply can't draft statutory language for every new 
challenge that will arise in the future. So the Constitution 
permits the President some degree of discretion in executing 
and enforcing the laws passed by Congress.
    With respect to Federal agencies, the President indeed 
exerts a great deal of control over their policymaking, but the 
agencies' behavior is constrained in important ways. Consider 
The Administrative Procedure Act, the APA. At every major part 
of the APA is a purpose to balance the need for agency 
discretion with the imperative that they stay within their 
mandates.
    The APA's judicial review provisions are important for 
enforcing these expectations. Indeed, as I testified in this 
room last month, judicial review enables courts to police those 
jurisdictional boundaries set by Congress. They can guard 
against serious agent errors and incentivize agencies to engage 
in legitimizing behaviors before the fact, promoting fidelity 
to statute. Let me give two examples of how this system 
operates.
    The Supreme Court's decision in Massachusetts v. EPA, 
illustrates the limits of Presidential control and the strength 
of statutory boundaries. As you are no doubt aware, that case 
involved an agency action rejecting a rulemaking petition to 
regulate greenhouse gas emissions from new motor vehicles under 
the Clean Air Act. The EPA denied the petition, and it relied 
for its explanation on various presidential policy preferences.
    The Court held that EPA's reasoning was arbitrary and 
capricious because it did not relate to the statutory test. 
Notably, this judicial role in cabining executive discretion 
operates regardless of the particular political view at issue.
    This is illustrated by the recent decision, Utility Air 
Regulatory Group v. EPA, in which the Supreme Court again had 
occasion to consider EPA's approach to regulating greenhouse 
gas emissions under the Clean Air Act, this time, under a 
different Presidential administration with different policy 
preferences. Once again, the Court held in part that the EPA 
had exceeded its statutory authority.
    As these examples show, agencies admittedly pushed the 
boundaries of their statutory authority, whether or not at the 
express direction of the executive. But courts police that. And 
even when judicial review is not available, our system provides 
a variety of mechanisms to monitor agency behavior.
    It's striking that the other agencies being discussed today 
and their actions are the subject of incredible amounts of 
external review. The FBI, the Department of Justice, the 
Government Accountability Office, the press, the public, and of 
course, this institution, have all participated in oversight 
and robust debate concerning these issues.
    It's easy to pick a few examples of big agency decisions to 
criticize. But I want to emphasize that agencies take thousands 
of actions every day that conform to good governance. The 
expectations of judicial review have been internalized into 
agency culture to such a large degree that they are often 
present even for unreviewable agency actions.
    Our system of administrative law has a vast array of built-
in mechanisms to ensure that agencies conform to their 
statutory mandates. The best policy approach is to let those 
mechanisms operate as intended, enabling transparency, robust 
debate, and improving regulatory governance going forward.
    Thank you for the opportunity to testify, and I look 
forward to your questions.
    [The prepared statement of Ms. Hammond follows:]
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                               __________
                               
    Mr. King. Thank you for your testimony, Ms. Hammond.
    The Chair would now recognize Mr. Grossman for his 
testimony.

    TESTIMONY OF ANDREW M. GROSSMAN, ADJUNCT SCHOLAR, CATO 
         INSTITUTE, AND PARTNER, BAKER & HOSTETLER LLP

    Mr. Grossman. Thank you, Mr. Chairman, Mr. Ranking Member, 
and Members of the Subcommittee.
    I'd like to address three questions today, if I could. The 
first, what is executive overreach? The second, why does it 
matter? And the third, what can we do about it? To begin with, 
what are we talking about here?
    Now, in a very general sense, when the executive asserts 
authority to make decisions of major economic and political 
significance that have not been authorized by Congress, in a 
certain constitutional sense, that may comprise executive 
overreach. Likewise, overreach may involve enacting new 
policies that Congress has not enacted, or received and 
rejected, or it may involve refusing to faithfully execute the 
law that has, in fact, been legislated.
    Now, that's one set of overreach, and that's a sort of 
qualitative view of it. But overreaching is typically 
facilitated and accompanied by other abuses, including 
arbitrary enforcement policies to achieve political or policy 
ends, the use of guidance to set forth new legal requirements, 
and structuring actions in such a way as to evade or delay 
judicial review.
    Now, let me give two examples that take these general 
principles and, perhaps, make them a bit more concrete. The 
first is the Department of H--Health and Human Services' 2012 
guidance that requested States apply to the Department to waive 
the work requirements that were the centerpiece of the 1996 
Welfare Reform Act. That Act, in particular, requires two 
things.
    First, it requires that States require a certain number of 
the able-bodied persons on their roles to engage in work 
activities and, second, it requires that those work activities 
be particular activities, not made-up work, not busy work, but 
specific things that actually look and feel and seem like work.
    The President asserted authority under section 1--1115 of 
the Social Security Act, but that section actually specifically 
does not reply to the provision of the Welfare Reform Act that 
concerns the welfare work requirements.
    Indeed, that statute expressly conditions funding to the 
States for the welfare programs on adherence to the work 
requirements. The section 115--I'm sorry--1115 waiver authority 
applies only to other items concerning State plans: Areas of 
State plans where States have discretion, where they can 
experiment, where they can do different things, where they get 
to make choices. The work requirements were not among those 
things.
    There are three or four different features of the statutory 
scheme that confirm that particular interpretation. The 2012 
guidance addressed none of this. In fact, it barely provided 
any legal rationale whatsoever. Why? Well, the reason was, was 
that the Administration recognized that there was basically no 
possibility that anybody could challenge this measure in court. 
The Administration knew that this was a blatant attempt to 
circumvent Congress' commands.
    It engaged in what appears, to me, to be unusually 
aggressive statutory interpretation. It blew up a very limited 
waiver authority to something that the waiver authority plainly 
does not contemplate or countenance. And then it did all of 
this with the expectation that it would be able to evade any 
kind of judicial review.
    And, indeed, the thing that surprised me during this 
particular episode, is that the Administration's defenders in 
this particular action chiefly argued simply that nobody would 
ever be able to take the Administration to court to prove their 
point. In other words, there was very little defense of this 
particular action on the merits.
    Likewise, the clean power plan to regulate carbon dioxide 
emissions from existing power plants relies in an obscure all 
but forgotten provision of the Clean Air Act to seize authority 
over electricity production across the Nation. According to the 
Administration, the provision allowing EPA to determine the 
``best system of emission reduction'' applicable to a 
particular kind of source--in this case, power plants--
authorized its required generation shifting; in other words, 
running some kinds of plants less or closing them in favor of 
other types of sources that are preferred by the EPA.
    Now, that abandons 30 years of consistent EPA 
interpretation of that statute, 30 years of judicial 
interpretation of that statute. And it clashes with plain 
statutory requirements, for example, that a particular standard 
be achievable by sources to which its applicable. In short, it 
could provide a basis to shut down any plant, any source of 
emissions in the entire country in favor of some other thing 
that EPA might prefer. And that's exactly the kind of 
discretion that Congress sought to deny EPA, due to the 
economic consequences that would be involved. Congress wanted 
to retain that authority for itself.
    Again, this is all of the hallmarks of overreach. It's a 
blatant attempt to circumvent Congress, which rejected the 
Administration's plans to regulate greenhouse gas emissions. 
It's enormously aggressive statutory interpretation. And, 
moreover, the Administration attempted to rush the rule into 
force so as to evade judicial review. Well, it didn't work. The 
Supreme Court stayed the rule, recognizing that it was likely 
illegal.
    Why does any of this matter? Well, I don't think this is 
about partisan politics at all. It implicates the rights and 
the liberties of all Americans. The Constitution provides for 
separation of powers to protect individual liberty and it 
provides for checks and balances to confine each branch of 
government to its proper place, and, therefore--thereby enforce 
the separation of powers.
    The precedents that are set by this Administration would 
provide a basis for future executives to carry out policies 
that could never pass Congress. In this way, departing from the 
constitutional design because it might be convenient today 
jeopardizes Americans political freedoms and individual 
liberties over the long term.
    So, finally, let me address what Congress can do about 
executive overreach. In my written testimony, I offer a number 
of different proposals that Congress should, to my mind, 
consider. Let me briefly address three of them here.
    The first, as Ms. Mitchell described, is to rethink 
judicial deference, the agency interpretations of statutes and 
regulations. Doctrines like Chevron and Auer have facilitated 
overreaching across the board. In too many instances, the 
search for meaning in written law has been replaced with the 
hunt for ambiguities that might allow the agency to escape the 
legal confines of the law. Congress can and should rethink 
these doctrines.
    Second, Congress should act to ensure that judicial review 
is always available and as much as possible is effective. That 
may include automatically pausing certain agency actions so 
that agencies can't force compliance with legally questionable 
rules before courts have a chance to review their merits.
    And, third, the court should--sorry--Congress should 
reconsider broad delegations of authority. At one time, 
Congress could reasonably expect that the executive branch 
would not seek to take advantage of unclear or ambiguous 
statutory language as a basis for launching broad policy 
initiatives. Those kinds of issues, it was well understood, 
would be left to Congress. But that time has long passed and 
the open-ended language remains in the books. Congress should 
take care to ensure that new laws reserve its policymaking 
authority and, as possible, should act to clarify older 
statutes.
    In conclusion, executive overreach is a serious problem, 
and the Task Force should be commended for its efforts to 
identify the scope of the problem as well as potential 
solutions.
    I thank the Subcommittee for the opportunity to testify on 
these important issues.
    [The prepared statement of Mr. Grossman follows:]
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                                   __________
                                   
    Mr. King. Thank you, Mr. Grossman.
    I thank all the witnesses for your testimony.
    And we'll now proceed under the 5-minute rule with 
questions. And I'll begin by recognizing myself for 5 minutes.
    First, Mr. Grossman, the recommendations that you've 
discussed here, consider the judicial review in, I wanted to 
pose this: That as I've watched our executive branch's 
overexuberance on regulations that are emerging, if we go to 
the courts and appeal to the courts when they've overreached, 
it looks to me like an Administration can come and go before we 
can get resolution on the courts, listening to Ms. Mitchell's 
testimony this morning. How do we deal with that?
    Mr. Grossman. Right. Well, I mean, there are certain ways 
to structure judicial review so as to avoid the kind of 
gamesmanship that has plagued agency actions in recent years. 
One example that Ms. Hammond noted was the Utility Air 
Regulatory Group decision. But I will note that the major rule 
that came after that, that really drew a lot of controversy, 
was the so-called Utility MACT rule, which was the major 
regulation of power plants that the Administration rushed into 
force, despite lots of opposition, not merely by power plant 
operators, but by grid regulators and the like, arguing that 
there should be a more gradual implementation period so as to 
reduce costs, so as to allow for judicial review, and so as to 
protect the integrity of our electrical grid.
    The Administration turned a blind eye to all of that in its 
response, and as a result, by the time the Supreme Court ruled 
that that rule was illegal, it had already been in force and 
basically everybody had complied. I think----
    Mr. King. I recognize that point. I'm just watching my 
clock tick down here. So do you have knowledge of the drafting 
of the work requirement in the TANF regulations? I mean, it's 
my recollection that it was written as tight as possible with 
the idea that it would prevent a President from circumventing 
or waiving the work requirement. Would that be true? And is it 
possible to write something tight enough that perhaps the 
President would recognize that it's too tight for him to jump 
out of the boundary?
    Mr. Grossman. Well, I think in this Administration, it 
seems like almost anything's fair game. But if you take an 
honest and fair view of the statute, there simply is no waiving 
those particular work requirements. The waiver provision does 
not extend to them. The language simply isn't there.
    Mr. King. We have to have an honest and fair view or we're 
caught up in forever litigation.
    I turn to Mr. Bernstein. And just thinking about your 
comments that had to do with the auto companies. And I recall a 
witness we had here from the State of Indiana testified, seated 
where Ms. Hammond is right now, and he testified that as the 
bankruptcy of Chrysler, as I recall, went before the court, 
that there was only one appraisal, the White House's appraisal 
and, let's see, there was only one proposal that went before 
the Chapter 11 court, and that there was only one bidder on the 
tail end of that. And in all cases, the appraisal, the Chapter 
11 proposal, and the--and the bidder on it were all the White 
House, that there was only one proposal in each one of those 
three cases. And I recall asking him, were there any Is 
crossed--and Is dotted differently or any Ts crossed 
differently as a result of the testimony before the court? And 
his answer was, no.
    Is that a fair picture of the package that was offered by 
the White House that you described?
    Mr. Bernstein. That's fair. It is also the case that it was 
designed to benefit the oil workers union that supported the 
Democrats in the 2008 election and beyond and to harm other 
stakeholders, such as the Indiana pension fund that was 
probably represented by the person that you had here.
    The Bankruptcy Court just deferred to everything the 
Administration did; said, well, almost everyone who was a 
bondholder agreed to it. The problem was the bondholders were 
all big financial institutions that were being threatened with 
criminal and civil prosecution for their role in the 2008 
financial crisis, and they were given one of these a-deal-you-
can't-refuse choices.
    So the Supreme Court, though, upheld everything but said, 
well, we vacated the lower courts actual legal finding, this is 
not going to be precedent. It was too late. The companies 
already merged. So it was already moot by the time it got to 
the Supreme Court, so we don't know what the Court would have 
said.
    Mr. King. It would be nice to be in a business deal and 
have that kind of leverage. Thank you.
    And I turn to Ms. Mitchell. And I appreciate your 
recommendations. They were clear, concise, and compact.
    I wanted to propose, in return to one of your proposals 
here, a bill called, it's H.R. 2778, the Sunset Act. It's a 
bill that I offered several cycles ago and probably need to 
push harder in the next Administration. What it does is it 
sunsets all regulations phase in 10 percent a year for 10 
years. So the agencies are required to offer up all of their 
regulations to Congress, requiring an affirmative vote for them 
to have the force and effect of law. And it says that any new 
regulation, regardless of its value, has to have the 
affirmative vote of Congress, and then it also sunsets at the 
end of 10 years.
    Would something that I've described here, would that 
conform to one of your proposals?
    Ms. Mitchell. It's certainly a step in the right direction. 
I think that the only way that Congress is going to restore its 
role as the Article I branch of government is for Congress to 
take some serious and seemingly radical positions. I mean, I'm 
pleased to hear Ms. Hammond describe the Administrative 
Procedures Act and this nirvana that could exist. It's just 
that that isn't reality.
    I'll give you an example with the IRS, one of the things 
I've learned, having dealt with them now for 7 years on the 
scandal and its ongoing tentacles. When the IRS unveiled its 
proposed regulations to basically enshrine the discriminatory 
activities that they had undertaken with the application 
process and proposed new regulations that they had developed in 
secret, off plan, no notice, they were sprung on the citizenry 
on Black Friday, the day after Thanksgiving of 2013.
    One of the things that I've learned since then is the IRS 
takes the position, has taken the position in judicial 
proceedings that the Administrative Procedures Act is not 
applicable to IRS regulations, the IRS regulations are not 
subject to the Regulatory Flexibility Act; they're not subject 
to the Paperwork Reduction Act, and that it can basically do 
whatever it wants.
    Now, if Congress is going to sit by and let the IRS 
continue to take that position, that's a pretty frightening 
prospect. And I think that something--Congress has to take 
dramatic steps to curb specific excesses in agencies and to do 
the kind of general repeal of the unfetterred regulatory power 
that has been, in my view, unconstitutionally delegated to the 
executives.
    Mr. King. Thank you, Ms. Mitchell. Of course, I would just 
abolish them and simplify this considerably.
    The Chair would recognize the Ranking Member from the State 
of Tennessee.
    Mr. Cohen. Thank you, Mr. Chair.
    You know, I agree that there's executive overreach that's 
been by all executives. I think, you know, power is taken, not 
given as in the Machiavelli rule that continues and will live 
forever, I guess. We had it when Bush was President, the IRS. 
Nixon's the champion. He's number one with the enemy's list. It 
was awful.
    And, Ms. Mitchell, you had some good comments, but--and I 
could understand them, but you talked about all these groups 
that had ``patriot'' in their names. There were other groups 
that were looked at too. And I've got some information, because 
I asked as we started, there were some of these groups that 
were more Democratic type groups. ``Progress'' was in their 
names, and so they got picked. Progress Missouri and, I think, 
Progress Texas. And they were a California group too. It was 
set up primarily for the benefit of a political party, and they 
were looked into, Emerge America. And so, you know, are you 
familiar with those cases?
    Ms. Mitchell. Yes, sir, I am.
    Mr. Cohen. Don't you think it would have been a little 
better for you to mention those cases in your testimony as well 
to show that--that the IRS--it was an IRS problem? It was not a 
political assault on Tea Party folk, but it was an effort by 
some people that was bad policy to go after a bunch of 
different people, some of who were considered liberal. And if 
we--I think if we approach it that way, I think it'd be better 
to deal with the issue than just pick out the one groups.
    Ms. Mitchell. Well, Congressman, that would be fine, except 
that that is not a correct characterization of what happened. 
And I can give you a specific example with Progress Texas.
    If you look at the data, which the Committee on Oversight 
and Government Reform has compiled and which the testimony of 
the Treasury Inspector General for Tax Administration 
specifically provided to the House Ways and Means Committee, 
you will find that those assertions in that New York Times 
article about how the IRS was an equal opportunity 
discriminator, turns out that that is not exactly correct.
    And I'll give you just the example of Progress Texas. 
Progress Texas showed up on a list. There were, I think, 85 
groups in September of 2011. Progress Texas showed up on that 
list along with--as one of three or four liberal sounding 
groups. The commentary about Progress Texas said that it 
appeared that they had anti-Rick Perry propaganda on their Web 
site. Now, contrast that with King Street Patriots, one of my 
clients, or Tea Party Patriots, one of my clients, where they--
the commentary would say by their names ``appeared to have 
anti-Obama propaganda.'' That was September or November, 
sometime in that timeframe, the fall of 2011.
    In June of 2012, Progress Texas got its 501(c)(4) letter of 
exempt status. Tea Party Patriots did not get its (c)(4) status 
until February 29th of 2014, the day that its president 
testified before the House Committee on Oversight and 
Government Reform. And King Street Patriots didn't get its 
exempt status until the fall of 2014.
    So the disparate treatment is documented, and anyone who 
thinks that's not true just hasn't studied the record. I'm 
sorry.
    Mr. Cohen. Well, but the fact is what is true, and we have 
studied the record, is groups with the name ``progress'' were 
looked at as well. And they did not just automatically get 
their exemption. And groups that were liberal got it, same kind 
of examination. And I don't know about----
    Ms. Mitchell. No, they didn't.
    Mr. Cohen. I don't know about your situation. Maybe they 
hired you early and maybe the other groups didn't. And because 
you were hired and were so thorough, that they had a little bit 
more difficulty and took a little more time, or maybe they had 
more people or didn't respond as quickly. I don't know. But the 
fact is the IRS was bipartisan in the way they did it. They 
weren't right with either side and the IRS corrected it. And 
there were no criminal investigations and no reason for 
criminal investigation because there was no probable cause.
    Ms. Mitchell. Well, I----
    Mr. Cohen. Ms. Hammond, I would like to ask you about your 
proposal to deal with the Administrative Procedures Act. How do 
you think we could do that?
    Ms. Hammond. I'm sorry, sir.
    Mr. Cohen. You had a suggestion we should change the law to 
make it----
    Ms. Hammond. In fact, I do not suggest that we should 
change the law. I don't agree that the APA is nirvana. It is 
not perfect. It is functional. And what it attempts to do is 
strike this balance that I was discussing by trying to ensure 
that agencies do have the flexibility to exercise their 
expertise but that we ensure that they remain faithful to their 
statutory mandates. And so I don't propose that we change the 
APA in any way, not because I think it's perfect, but because I 
think it's pretty good.
    Mr. Cohen. And are you familiar with Progress Texas, Emerge 
America, and some of the groups that were considered more 
liberal that were also given extra scrutiny by the IRS?
    Ms. Hammond. Yes, it is my understanding that some of those 
groups were targeted as well.
    Mr. Cohen. Thank you very much.
    I yield back the balance of my time.
    Mr. King. The gentleman yields back.
    The Chair will now recognize the gentleman from Texas, Mr. 
Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman.
    And thank the witnesses that are here.
    So much to correct with so little time. My colleague on the 
other side of the aisle said this was political theater, said 
an effort to brand the President illegitimate. That struck a 
memory nerve. And I recall when Bill Posey filed a bill, and I 
thought it was a good bill. It was a good bill, just over two 
pages. And it was going to require that in future years, future 
election, had nothing to do with 2008, that since there was no 
enabling statute for the constitutional requirements of age and 
being a natural-born citizen, it would provide enabling statute 
to do that and require the parties to resolve, in advance, 
whether somebody meets those two constitutional requirements.
    Now, those are great ideas, especially since the Washington 
Post and New York Times had questioned John McCain's viability 
to meet those. I have never, ever said the President was not a 
natural-born citizen. I've been branded a birther because I 
signed on to Bill Posey's bill.
    But through that, reporter after reporter after reporter 
asked, ``So why are you now trying to delegitimize the 
President in getting thrown out of office?'' And one, one of 
the best reporters here in town, I said, ``Have you read the 
bill?'' She said, ``No, but I got my information from the 
highest level of the White House. I got a memo. It says you are 
the newest guy trying to delegitimize the President getting 
thrown out of office.'' I said, ``Read the bill, and if you 
have questions, then ask me.''
    She read the bill. Next time I saw her she said, ``That was 
nothing like the White House said it was.'' I said, ``Yeah, 
it's a good bill.'' It was a good bill then. It's a good bill 
now. Even with Obama going out of office, it would be a good 
bill. But that word, illegitimate, delegitimize, it is an 
effort to brand legitimate efforts to fix things that are 
wrong.
    Now, the Obama administration--despite the comments that 
everything's fine, this is no different, all the 
Administrations are the same--23 times have been told that 
you've gone too far. And it's unprecedented. Nobody's ever come 
close to having 11 unanimous Supreme Court decisions, including 
the extreme liberals, saying, Obama administration, you have 
gone too far.''
    So as far as being illegitimate, this is legitimate stuff. 
And as far as the Justice Department finding that the IRS did 
nothing wrong, they said, well, now, we found mismanagement, 
uncovered substantial evidence of mismanagement, poor judgment, 
and institutional inertia.
    On over they say, now, although Ms. Lerner exercised poor 
judgment in using her IRS email account to exchange personal 
messages that reflected her political views, yeah, that was 
inconvenient because it showed that she was acting in 
accordance with her political positions. There was plenty of 
evidence.
    Just like this Administration, after both a United States 
District Court and the Fifth Circuit Court of Appeals said, 
``There is substantial evidence to find that these other Muslim 
organizations are acting in conspiracy with the Holy Land 
Foundation that was found guilty of supporting terrorism,'' 
this Administration came back and says, ``We find no evidence, 
after courts had already said, `There's plenty of evidence 
here. We're not striking their names.' ''
    So it is really unfair to say that this Administration 
finds no evidence and try to relate to that, to there being no 
evidence.
    Now, I appreciated very much the recommendations, Ms. 
Mitchell. Those were terrific. And I'm sorry, I always did well 
on national testing because I ask questions when I don't know. 
And I'm curious, what is the associate dean for public 
engagement? Is there a dean of public engagement that's over 
you? What does public engagement do?
    Ms. Hammond. There is a dean of the law school. That's Dean 
Blake Morant.
    Mr. Gohmert. But there's no dean of public engagement?
    Ms. Hammond. That's correct.
    Mr. Gohmert. So the associate dean is the top dean of 
public engagement?
    Ms. Hammond. That's correct, but underneath the full dean 
of the law school.
    Mr. Gohmert. Gotcha. Okay. Thank you.
    With regard to the TARP overreach, I've got to say, that 
was such a horrible bill. It gave them all kinds of ability. 
That's why I was so opposed to it. But I would just like to 
encourage each of you, because our time is so limited here.
    Ms. Mitchell, you've given great recommendations.
    I would encourage each of you--I know Professor Hammond 
doesn't see any needs--but we've got to fix this system. You've 
made some great recommendations. Any others that you could 
recommend, things to do, please recommend them. We've got to do 
these things.
    Thank you.
    Mr. King. The gentleman from Texas yields back.
    The Chair would now recognize the gentleman from Florida, 
Mr. Deutch.
    Mr. Deutch. Thank you very much, Mr. Chairman.
    First, thanks to the witnesses for being here.
    Ms. Mitchell, just one question: Since we're using this 
admittedly flawed criteria that the IRS used, how many 
organizations were ultimately denied their tax-exempt status as 
social welfare organizations for compliance with 501(c)(4)?
    Ms. Mitchell. Congressman, now, that is part of what the 
Sixth Circuit excoriated the IRS about in that opinion----
    Mr. Deutch. Well, I don't think any.
    Ms. Mitchell. I don't think we know yet.
    Mr. Deutch. Right. So----
    Ms. Mitchell. I don't think we know yet.
    Mr. Deutch. I appreciate that. So given that, I just would 
like to make a few observations. We find ourselves here during 
what has been much publicized as the GOP tax week, and I 
suppose during tax week we're here to commemorate the 150 
million tax filings that flood into the IRS, 5 million coming 
in just yesterday after the deadline passed.
    The majority, no doubt, thinks the best way to curry favor 
with the American public is to blame the IRS. I don't buy it, 
frankly. I would point out that Congress gets the money to fund 
this hearing from IRS tax revenue, that we earn our salaries as 
Members of Congress thanks to the IRS collecting tax revenue.
    And so while the IRS absolutely and legitimately needs 
reform, the majority refuses to acknowledge what the agency 
does right, how to fix what actually needs to be fixing, and 
instead looks to generate headlines this week by blaming the 
IRS for seemingly everything wrong with the government.
    So here's the question: Were social welfare groups handled 
inappropriately at the IRS? Yes.
    But is that the real scandal, Mr. Chairman? The real 
scandal, I would suggest, is the fact that political spending 
by so-called social welfare groups is exempted from taxation 
and is subsidized by the American people. These groups are some 
of the biggest players in politics. And the--my friends on the 
other side of the aisle should not be complicit in their 
attempt to hide their donors or agendas behind some hollow 
outrage at the IRS.
    The poor handling of tax-exempt applications at the IRS was 
a direct result of the Supreme Court's obliterating our 
campaign finance system in Citizens United. After that 
decision, thousands of new applications flooded the IRS. These 
groups were specifically created to skirt disclosure 
requirements and contribution limits. That's the scandal that 
we ought to be focused on.
    Consider that just after Citizens United came down, 
thousands of new applications came in for social welfare tax-
exempt status, a 92 percent increase from 2009 before Citizens 
United to 2012. Many of these groups were created at the 
direction of sophisticated, well-connected, and well-funded 
Beltway campaign funders, who went to work to create all kinds 
of complicated webs of tax-exempt groups to funnel money, 
unlimited contributions from one organization to another.
    Why? Why was that done? What is the scandal here? It's to 
hide the identity of donors, to make it seem as though campaign 
season ads are speaking for the people when they're really 
speaking for the wealthy individuals and corporations that fund 
these super-PACs that so often we don't even know about because 
of these 501(c)(4)s, to obscure connections to corporations 
that don't have the best interest of the people at heart.
    Corporations who want to stop clean energy requirements; 
corporations who want to prevent gun efforts to stem the tide 
of gun violence; corporations who want to protect subsidies, 
tax breaks, and loopholes. And many of these social welfare 
organizations are nothing more than a post office box in 
Alexandria, Mr. Chairman.
    Why do we have to continue to waste the resources of this 
Congress to conduct this hearing after internal and external 
IRS reviews, FBI and Department of Justice investigations, a 
partisan contempt proceeding, and multiple investigations by 
House Committees, including hundreds of interviews and hundreds 
of thousands of pages of documents collected? We find ourselves 
just where we started.
    The real scandal is the scandal this Congress is doing 
nothing about, and it's the overwhelming influence of money in 
politics. The true scandal is that Congress refuses to accept 
responsibility for putting the IRS in the position of 
evaluating tax-free political activity. The actual scandal is 
that Congress refuses that the American people shouldn't be 
forced to subsidize the political activities of sham groups.
    The scandal that I'm most ashamed of, though, Mr. Chairman, 
is that this House of Representatives will do nothing except 
hold these show trials. Today's hearing won't do a thing to 
stop a system that protects big money in politics, but it will 
help to continue the dominance of the wealthy few over the will 
of the people in our American democracy. That, Mr. Chairman, is 
the scandal that we ought to be focused on, and I hope one day 
we will.
    And with that, I yield back.
    Mr. King. The Chair thanks the gentleman from Florida and 
now recognizes the gentleman from Ohio, Mr. Jordan.
    Mr. Jordan. Thank you, Mr. Chairman.
    The gentleman from Florida mentioned the real scandal. 
Here's the real scandal: The IRS systemically targeted 
conservatives for exercising their First Amendment political 
speech rights. They did it in a systematic way, and they did it 
for a sustained period of time.
    They get caught. Lois Lerner gets caught, and she does what 
all kinds of people do when they get caught with their hand in 
the cookie jar: She lies about it.
    Isn't it true, Ms. Mitchell, she went to a bar association 
speech, May 10, 2013, planned a question from one of her 
friends, and said, wasn't me, it wasn't us, it was folks in 
Cincinnati. Isn't that true?
    Ms. Mitchell. That's true, but it wasn't true.
    Mr. Jordan. Right. Exactly.
    Ms. Mitchell. I'm sure she said it, but it wasn't true.
    Mr. Jordan. She said it, but it wasn't true. The facts show 
it was all in Washington. So she lies. And then when she gets 
caught lying, she does what happens sometimes. She's brought in 
this Committee room, at that same table you're all sitting 
there, and she takes the Fifth.
    So now here's what happened: The central figure lies when 
the story first breaks, then she takes the Fifth. Now, this 
sort of--any criminal investigation, any congressional 
investigation, there's a premium on getting the documents, 
information, emails, communications, all the stuff that went 
on. But when you have the central figure taking the Fifth, it 
really emphasizes the need for the documents.
    So Mr. Koskinen is brought in. The President says he's the 
fixer. He's the professional guy brought in to fix this system 
and clean up the IRS. And under his watch, I think he breached 
every duty he had.
    Would you say, Ms. Mitchell, that he had a duty to preserve 
the documents that were there relevant to the congressional and 
criminal investigations that were going on?
    Ms. Mitchell. He absolutely did. They were under subpoena 
from the House Committee on Oversight and Government Reform in 
August of 2013, and they weren't produced. A subpoena was 
reissued in February of 2014, and he----
    Mr. Jordan. Two subpoenas.
    Ms. Mitchell. Two subpoenas. And not only that, but there 
was ongoing litigation with respect to--as early as May of 
2013.
    Mr. Jordan. From your clients.
    Ms. Mitchell. My clients, and the Z Street case, which had 
been filed in 2010, and involved the very same factors and 
subpoenas and documents.
    Mr. Jordan. Two subpoenas, three preservation orders. The 
IRS themselves, they sent a preservation order to themselves. 
They said preserve all documents.
    So Mr. Koskinen, his IRS had a duty to preserve all the 
documents. They had a duty to produce them to the Committee 
because we subpoenaed them. And they had a duty to inform us if 
they couldn't preserve them or didn't preserve them and 
couldn't produce them. And so all three of those duties were 
breached when they allowed 400 backup tapes to be destroyed. 
Would you agree, Ms. Mitchell?
    Ms. Mitchell. I agree. And I think that for that reason 
alone, but certainly for many others, I think that Commissioner 
Koskinen has lied to the Congress repeatedly and he should be 
impeached and removed from office.
    Mr. Jordan. I hadn't even got to that, but you're exactly 
right. You're exactly right. Duty to preserve; they failed 
that. Duty to produce documents; they failed that. Duty to 
inform us in a time--he knew that problems with Ms. Lerner's 
email, or with her server and her emails, he knew about that 
and waited 4 months to tell us. He waited 4 months to tell us 
that some of the backup tapes had been destroyed.
    Four hundred backup tapes destroyed, potentially 24,000 
emails, and he comes and testifies and says nothing. And then 
he said, oh, when it came to the backup tapes in the later 
testimony, that they were all destroyed. Some of them weren't. 
Some of them were. So they had a duty to testify accurately, a 
duty to correct the record.
    And it seems to me when we're talking about executive 
overreach, one of the things the legislative branch can do is 
impeach this guy. I mean, that's the record.
    Now, we can add to it. Let me do one other--if I could, Mr. 
Chairman, one other area.
    Are you familiar with StingRay technology, Ms. Mitchell?
    Ms. Mitchell. A little bit. I'm conversant.
    Mr. Jordan. So StingRay technology, my understanding, is 
this is the capability that certain law enforcement and, in 
this case, the Internal Revenue Service has to bring this 
technology into an area and find--geolocation technology. What 
happens is this device mimics the cell phone tower, and all the 
cell phone numbers in that area come to this. They can find out 
where you're at, your number and collect. It's a net. It's not 
a fishing line; it's a fishing net.
    Last week, testimony in this Committee, we learned that the 
IRS has employed this technology 37 times, and each time did it 
without a probable cause warrant. Do you think that's 
appropriate for the agency with the track record we now know 
that they have relative to conservative groups is employing 
this kind of technology without a probable cause warrant?
    Ms. Mitchell. Absolutely not, and that's why I think that 
the--that Congress needs to establish an individual cause of 
action to be--for individuals whose--in the cases that I've 
been talking about where First Amendment rights were violated. 
If your Fourth Amendment rights are being violated by the IRS 
and by individual IRS agents and employees, you ought to be 
able to have the ability to file a lawsuit and get damages.
    We have to find ways to hold the individual people 
accountable for violating the constitutional rights of the 
American people. And if Congress doesn't do that, we are never 
going to get control of them.
    Mr. Jordan. I appreciate it, Mr. Chairman. I thought I 
was--I see my time has expired. Thank you.
    Mr. King. The gentleman returns the time.
    And the Chair would now recognize the gentleman from South 
Carolina, Mr. Gowdy.
    Mr. Gowdy. Thank you, Mr. Chairman.
    I am going to barely resist the temptation of asking 
questions of law professors, other than to just note, Professor 
Hammond, at some point I would like to discuss with you In Re: 
Aiken County, which is a case on prosecutorial discretion, as 
you probably know better than I do, because I am somewhat vexed 
as to whether or not there are any limits on prosecutorial 
discretion. Some of my colleagues on the other side don't seem 
to think there are.
    And you also mentioned oversight. And at some point I'd 
like to discuss with you, when Congress sends a subpoena and 
that subpoena is not honored, or when Congress seeks to do 
oversight and the executive branch does not cooperate, what 
tools we have and the order in which you would use those tools.
    But I am going to save all of that for a later date because 
my attorney from Ohio, Jimmy Jordan, is here, and I would like 
to give the remainder of my time to my attorney, Mr. Jordan.
    Mr. Jordan. Well, I appreciate the gentleman yielding.
    And let me go to this. And let me go to Mr. Grossman here. 
Are you familiar with the tax gap that exists at the Internal 
Revenue Service, in other words, the difference between what 
they're supposed to be collecting for the Federal Treasury and 
what they actually do collect?
    Mr. Grossman. I'm afraid I am not.
    Mr. Jordan. Anyone familiar with how much that is? $385 
billion, according to the GAO study that was released in the 
last 2 weeks. $385 billion that the--this is the fundamental 
mission of the Internal Revenue Service, is actually to collect 
the tax revenue due to the Federal Treasury. That's what their 
job is, and they're failing to the tune of $385 billion a year. 
You think about our deficit this year, I think it's $500 
billion. I mean, this is a huge amount of money. So a $385 
billion tax gap.
    The GAO also recommended that the Internal Revenue Service 
employ 112 recommendations, 112 specific things the IRS can do 
to help them comply in accomplishing their fundamental mission, 
collecting revenue for the Treasury to fund the things--the 
services and things that we have in our government. And to 
date, the IRS has only implemented 62.
    So less than half of the recommendations to help accomplish 
their fundamental mission they've actually put into practice. 
And it sort of begs the obvious question: You've got time to 
harass conservative groups, ask them all kinds of intrusive 
questions, privacy-violating questions, infringe on--this is 
something I think gets lost in this debate too.
    Remember what the underlying offense was here. They were 
going after people's most cherished right, your right under the 
First Amendment to speak out against the policies of your 
government, fundamental and central to who we are as a country. 
So the very agency that has a $385 billion tax gap can't even 
do half of the recommendations GAO says you should do to 
accomplish your fundamental mission, has time to target people 
for exercising their First Amendment liberties.
    Mr. Bernstein, do you want to comment on any of that? I got 
a little speech there. It was not really a question, but I'll 
let you comment. And I have got one other question I want to 
ask too. Go ahead.
    Mr. Bernstein. I could comment briefly, because I do 
discuss this in my book. They were under a lot of pressure 
also. I don't know that much about Ms. Lerner's own political 
views, except what I've seen in the media, but they had letters 
from various senators, from congressmen. There was political 
pressure coming from the White House that after Citizens 
United, we think this stuff is going to benefit Republicans, 
and we need to have you guys crack down on it somehow.
    Mr. Jordan. Right. Ms. Lerner did. And she gives this now 
somewhat famous speech at Duke University where she says 
everyone is after us to fix it now. She gave the speech in the 
fall of 2010. Fix it now meant before the election. The 
pressure she was getting and letters she was receiving from all 
kinds of Democrats in the Congress, so she felt some obligation 
to try to address the situation.
    Now, you know, do you think--back to the StingRay 
technology, Ms. Hammond, do you think any of the 112 
recommendations made by GAO to help the IRS accomplish their 
mission, do you happen to know if any of those 112 included the 
IRS buying and employing StingRay technology? Do you know?
    Ms. Hammond. I don't know.
    Mr. Jordan. Does anyone know?
    Mr. Grossman, do you know?
    Mr. Bernstein, do you know? One of the recommendations was 
to buy this StingRay technology and use it on citizens to 
accomplish the fundamental mission.
    Ms. Mitchell?
    Ms. Mitchell. I'm assuming the GAO did not instruct the IRS 
to go buy StingRay technology.
    Mr. Jordan. You would be absolutely right. You can move to 
the front of the line.
    I mean, think about that. One hundred and twelve 
recommendations. The IRS has one StingRay. They're in the 
process of buying another. One hundred and twelve 
recommendations to help you actually do what you're supposed to 
do, collect revenue for the Treasury. They can't implement even 
half, but they're buying a second StingRay. They're going to 
potentially use that and infringe on American citizens' Fourth 
Amendment liberties.
    This is the IRS that John Koskinen is commissioner of. This 
is the IRS that allowed documents to be destroyed, violating 
people's First Amendment liberties when the targeting took 
place. And now, using our tax revenue, the limited amount that 
they're collecting--or actually not limited, a lot of money 
they're collecting but not the full amount--to buy technology 
to infringe on our Fourth Amendment liberties. Again, 
underscoring why Mr. Koskinen should have articles of 
impeachment move forward against him.
    With that, I yield back, Mr. Chairman.
    Mr. King. The gentleman from Ohio yields back to the 
gentleman from South Carolina, who yields the balance of his 
time.
    And the Chair now recognizes Mr. Issa of California.
    Mr. Issa. Thank you, Mr. Chairman. And I apologize, the 
Wounded Warriors got between us and part of this.
    Ms. Mitchell, it's good to see you as always. You did a 
good job of listing more things than I could write down, and 
they were all good. But I want to ask you sort of a--I don't 
want to be rhetorical. I want to be as straightforward in the 
question. If it's been asked already, I want to apologize.
    But as you know, the Ways and Means Committee referred a 
criminal referral to the Department of Justice that--against 
Lois Lerner, which said--and I'll paraphrase as close as I can 
18 U.S.C.--the U.S. attorney for the District of Columbia shall 
present to the grand jury these, you know, these accusations. 
They didn't do that. If that is the case--which it is--what 
would you suggest in the way of reforms?
    If we have the IRS with an individual adjudicated by the 
Committee of jurisdiction--which was not my Committee. It was 
Ways and Means that did it, based on all of our 
investigations--that, in fact, she criminally conspired to 
withhold people's rights and did so in a number of areas and 
then lied about it, which the lie was actually part of it.
    What do we do if, in fact, a congressional referral that 
has the weight of law that ordered the U.S. attorney to do 
something and the U.S. attorney didn't do it? Are we to impeach 
the U.S. attorney? Should we get the U.S. attorney disbarred? 
It's still out there. The fact is Loretta Lynch could do it 
today, but if I see her in the hallway, I'm not going to ask 
her when.
    So perhaps you could opine on that. Because, to me, all 
your suggestions may be for not if government refuses to do 
that which is already on the books.
    Ms. Mitchell. Well, Congressman, as you know, this 
Department of Justice has been documented as being the most 
politicized Department of Justice in American history. And not 
only did the Department of Justice fail to proceed with the 
criminal referral from House Ways and Means with regard to Ms. 
Lerner, the U.S. attorney for the District of Columbia failed 
to and refused to proceed to enforce the contempt citation that 
the House enacted for contempt of the House.
    And the thing that I always come back to is, well, the 
President of the United States went on national television in 
prime time, on May 14 of 2013, right after the IRS scandal 
broke and the TIGTA report was issued, and he said, I'm mad 
too, and I'm directing Eric Holder and the Justice Department 
to conduct a complete, full investigation.
    And the Justice Department interviewed Lois Lerner for 12 
hours. She talked to them. They have the ability to put her in 
jail. They talked to IRS employees and agents. But to my 
knowledge, they didn't talk to any of the victims of the 
targeting. And then they concluded that there was nothing to 
pursue. I mean, it was a sham investigation. And so the 
Department of Justice is--that's a huge problem.
    Mr. Issa. Well, this Committee, broadly, has the authority 
to change the Department of Justice in pretty profound ways, if 
we choose.
    Let me ask a question. I'll open it up to all of you. In 
light of the fact that before this Committee, in a question 
that I asked former Attorney General Eric Holder, his answer--
and I have to be honest. I don't fully remember the question, 
but I can tell you the answer. He told me he wore two hats: One 
is the highest law enforcement officer in the land; the other, 
quite evidently, is a political appointee to the President. And 
that includes consulting to the President, even though the 
President has its own lawyers, and it includes, in fact, 
strategizing with the President over politics.
    And we've now learned that the attorney general in his 
emails, in pretty good detail, led an attempt to withhold from 
the Oversight Committee in the Fast and Furious case specific 
discovery. They planned what not to give and when not to give.
    So I'm going to ask you all a question I'd like you to 
opine on now and in writing, if you would. Isn't it time for 
this Committee to consider depoliticizing the attorney 
general's position? The FBI director has a single 10-year term 
where he's put up, he's confirmed, and, in fact, he does not 
serve in the ordinary pleasure of the President.
    Should this Committee consider depoliticizing the attorney 
general, taking it out of being dual-hatted--the President can 
have all the advisers and political people he wants--but make 
once and for all, in a post-Nixon, post-Obama period, make the 
attorney general's position as nonpartisan as we can by making 
it a term appointment and not, in fact, a pure pleasure of the 
President?
    And we'll go right down the aisle.
    Ms. Mitchell. Well, Congressman, I've thought about this a 
lot, actually. But I would tell you that, in my experience, in 
my lifetime, I don't believe there's any such thing as 
depoliticizing something. The IRS has 90,000 employees. Only 
two of them are political appointed by the President, one for a 
set term and one, the chief counsel serves at the pleasure of 
the President. All the rest are career employees.
    Mr. Issa. I don't want to disagree with you because you're 
very good, but when we looked at the imbeds, some of whom were 
working for Mr. Cummings on the oversight staff and had been at 
the IRS for the previous years, there are a lot more political 
appointees than are official.
    But if I can go down the aisle for each of you just to get 
your view on----
    Ms. Mitchell. Could I just say this one thing? Just because 
they're supposed to be nonpolitical doesn't mean they are. We 
saw with the IRS and we will see it in the Justice Department.
    Mr. Issa. I have no doubt that even the FBI is not what we 
would hope it to be. But I'd like to see, is this a direction 
we should go to eliminate, if you will, the dual hat that the 
attorney general spoke of here? Please.
    Mr. Bernstein. That's a very interesting proposal. I think 
it might pose some constitutional problems to have an executive 
officer who's not accountable to the President. We do have such 
officers. As a matter----
    Mr. Issa. It is statutorily done in other areas.
    Mr. Bernstein. It is statutorily done, but from an 
originalist point of view or from a proper separation-of-powers 
point of view, I'm not sure that I could defend it. There might 
be some way of splitting some of the attorney general's duties 
with the judicial branch, because there are judicial functions 
that are part of the judicial--that are part of--that could 
possibly be delegated there. Judiciary is allowed to appoint 
certain people, like with certain kinds of special prosecutors 
and whatnot. So there might be some room to try to split some 
of the responsibilities.
    Mr. Issa. Briefly, Ms. Hammond.
    Ms. Hammond. I do believe that there would be separation of 
powers problems with changing the way these people would be 
removed. And I agree with Ms. Mitchell; I don't think that it's 
possible to depoliticize in that kind of way.
    Mr. Issa. All right. Look, the FCC and the SEC obviously 
have their examples, but--and I'll agree that they're not 
completely depoliticized.
    Mr. Grossman.
    Mr. Grossman. And I would tend to agree with Professor 
Bernstein; it would raise serious constitutional questions. 
With that said, I think the underlying premise of the idea, the 
frustration at the lack of accountability in oversight that's 
been possible in this Administration is something that can be 
addressed and should be addressed in a variety of different 
ways.
    Mr. Issa. Thank you, Mr. Chairman. Thanks for your 
indulgence.
    Mr. King. The gentleman from California yields back.
    And the Chair would now recognize the Chairman of the full 
Committee, Mr. Goodlatte of Virginia.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    And thank you all for your testimony today.
    Mr. Bernstein, can you describe this Administration's abuse 
of power in ways that hurt religious liberty?
    Mr. Bernstein. Sure. Well, I think the most outrageous 
example of the Administration's abuse of religious liberty, 
which really didn't get that much attention, is that every 
court in the United States that has ever reached the issue said 
that churches and other religious organizations have a right to 
choose their ministers, have a right to choose the people who 
serve them in a religious function. And it's a First Amendment 
right, under both the establishment clause and the free 
exercise clause. Every single court.
    There was a case that came before the Supreme Court in 
2011, and the only issue that was in the lower courts was does 
this particular teacher at a religious school qualify as a 
minister under the broad definition of minister for the 
ministerial exemption or not? Shockingly, when the case 
actually reached oral argument at the Supreme Court--this was 
not in the briefs even--the counsel for the Justice Department 
actually argued that there is no ministerial exception; that 
the government could, in fact, tell religious organizations who 
their ministers, rabbis, priests, imams, and what have you 
could be, with no--with the only possibility of defense that 
you have the First Amendment expressive association defense 
under Boy Scouts of America v. Dale.
    But the people in this particular Administration would have 
been against the decision in Dale. It was 5 to 4. And we know 
the courts, the balance now. So if Dale gets reversed, then you 
have no possibility of religious freedom.
    So that was really a shocking argument. In fact, Justice 
Kagan said, are you really arguing that? That's shocking even 
to her. And it's really an extreme view that we associate, even 
in the legal academy, which is very left wing, we're sort of 
the extreme left-wing fringe of the legal academy. And if the 
court had bought that, it would have been a really serious 
threat to religious liberty. Fortunately, nine to zero the 
court said absolutely not.
    Mr. Goodlatte. Very fortunately.
    Mr. Grossman, can you explain in more detail the problem 
caused when a regulatory action is challenged in court but is 
allowed to remain in effect for years until a final judgment on 
the regulation is reached by the courts?
    Mr. Grossman. Sure. Well, you know, in many instances, of 
course, parties do seek to stay regulations, but the standard 
to obtain a stay is very, very high. And in many instances, the 
kind of--the cards that you need, the information you need, the 
facts that you would need to obtain a stay are frequently 
things that are in the position of the agency, which, of 
course, has no interest in seeing its hard-fought rule put to 
the side while litigation continues.
    And so what this means, as a practical matter, is that in 
almost every instance an agency can come forward with a legally 
aggressive, perhaps legally indefensible rule that imposes 
billions or tens of billions of dollars worth of cost, and they 
can, in fact, through sheer force will it into being, 
irrespective of whether or not it is ultimately wound up being 
struck down by the court, as the Utility MACT rule was by the 
Supreme Court.
    Mr. Goodlatte. And this was taking an old law and rewriting 
the regulations without ever consulting the Congress or, in 
fact, failing to get the Congress to take the action that the 
Administration thought should be taken and then going ahead and 
doing this. And the end result is that after years of 
litigation and the Administration losing, they've actually 
really won because of all the changes that have already been 
made.
    Mr. Grossman. That's exactly right. And in that sense, it 
short circuits the normal judicial process and short circuits 
what we all think of as the rule of law. And somebody has to 
comply with the law and does so at enormous expense in a sort 
of one-way fashion. Others, they might retire a facility they 
own, they might bear some unusually large cost, they might 
suffer in some sense. That can't be undone. It can't really be 
fixed, and as a practical matter, it isn't.
    And it seems to me, though, that's simply contrary to the 
way that everybody understands that the rule of law ought to 
work, which is that you shouldn't have to comply with unlawful 
commands.
    Mr. Goodlatte. And what is the solution to that?
    Mr. Grossman. Well, I think there are two things. In a 
narrow sense, Congress certainly could prescribe, particularly 
in certain areas, that in certain circumstances a stay is 
appropriate for rules when they raise certain types of issues 
or when they're challenged in certain kinds of ways. Look, 
there are a lot of parameters to do it, but I think a lot of 
that harm could be ameliorated.
    But the second thing is, there needs to be a change in the 
relationship at this point between the executive branch and the 
legislative. The executive branch needs to be much more 
solicitous of what it is that Congress has actually legislated. 
We don't want people in the executive branch being aggressive 
and inventing new authorities that this body never intended.
    Mr. Goodlatte. Now, that sounds very attractive to many of 
us here on the dais. How do we accomplish that?
    Mr. Grossman. Well, gosh, that's a serious question. My 
testimony does, you know--my written testimony, that is, does 
suggest a few different ways of accomplishing that. And I think 
one of them would be looking at the deference canons that are 
applied by the courts in determining whether or not it is that 
the agencies are following the law or not.
    You know, as I testified, and as I've explained in numerous 
examples, the search for meaning has largely been replaced with 
the search for escape hatches in the law. In other words, the 
executive looks where is there an ambiguous word that I can use 
to do whatever it is that I would like. If courts got less into 
the business of rubber-stamping that kind of reasoning and more 
in the business of scrutinizing whether actions comply with the 
law, I think you would see a different relationship between the 
branches.
    Mr. Goodlatte. Agreed.
    Thank you very much, Mr. Chairman.
    Mr. King. I thank you, Mr. Chairman.
    The Chair now recognizes the gentleman from Texas, Judge 
Poe.
    Mr. Poe. I thank the gentleman.
    Thank you all for being here.
    Ms. Mitchell, it's good to see you again.
    I want to follow up on Mr. Issa's comments about abuse of 
power with the Administration bureaucrats. It's been a long 
time ago, but the House of Representatives held Eric Holder, 
the Attorney General of the United States, the chief law 
enforcement officer in the U.S., in contempt of Congress for 
hiding information. It's been 4 years later, not much has been 
said about it.
    But last week, 2 weeks ago, Federal judge--Ms. Jackson, I 
believe, Federal Judge Jackson ruled that, hey, the 
Administration has got to turn over those emails to Congress, 
and the whole thing now has kind of gone away. Indicative of, 
you know, when this happened, all from the other side, we heard 
this hue and cry about, oh, this is so awful about holding the 
attorney general in contempt. But he got his day in court and 
he lost. The attorney general was wrong in not turning that 
information over to Congress, even though it took 4 years to 
uphold what Congress did. Abuse of power, as I see it.
    Let's narrow it down to the IRS. Federal judge, I don't 
know this guy, David Sentelle, last week said, ``It's hard to 
find the IRS to be an agency we can trust.'' Well, no kidding. 
Federal judge has got it right. We can't trust them. You can 
talk to taxpayers, non-taxpayers out there in the fruited plain 
about the IRS. You know, they don't say nice things about the 
IRS. And the bottom line is, they don't trust the IRS. They 
feel like the IRS uses its authority to go out and use it for 
political persecution of individuals, one of which was your 
client, Catherine Engelbrecht.
    Now, I know you have attorney-client privilege, and I don't 
want to interfere with that, but it's been testified before 
this Committee that the King Street Patriots, Catherine 
Engelbrecht's organization, that all--True the Vote--that's all 
they want to do, is have honest voting. Started in 2010, had 
six visits by the FBI, one visit by ATF to her organization, 
one visit by the Texas Environmental Quality Agency, one visit 
by ATF.
    In some of those visits, the FBI was accompanied by people 
from Homeland Security, Harris County Sheriff's Office 
Terrorism Task Force. The FBI or the IRS wanted to know who 
attended these meetings, wanted to know where Catherine was 
going to make speeches, wanted to know who was in the audience 
when Catherine Engelbrecht made speeches, and wanted to know 
what her speech was about and what her future speeches were 
about. And it is all persecution of this organization by the 
IRS because they don't like what they are doing.
    Now, assume that's all true, Ms. Mitchell. Is that a fair 
statement, that it was--would you call it persecution, or what 
would you call all that?
    Ms. Mitchell. Well, I don't think it was a coincidence, if 
you're asking that. And I might add that the IRS also 
subjected--and I can say this because Catherine, Ms. 
Engelbrecht testified before the House, one of the House 
Committees about this. She and her husband were subjected to 
individual personal audits by the IRS, as well as their family 
business being subject to audit by the IRS. And all that came 
about----
    Mr. Poe. And never had been audited before ever in their 
entire lives with the business.
    Ms. Mitchell. It all came about after she submitted 
applications for the (c)4 status for King Street Patriots and 
the (c)3 application for True the Vote.
    Mr. Poe. And they were investigated by OSHA as well, were 
they not? Never before happened.
    Ms. Mitchell. All surprise visits. Surprise visits.
    Mr. Poe. And right now, today, is there law to prevent the 
IRS from doing that again to somebody else out there?
    Ms. Mitchell. Well, that's exactly what I'm saying. The 
Constitution, the First Amendment--and we have an action 
pending. And Judge Sentelle from the D.C. Circuit, it was our 
appeal last week at the oral argument on our appeal in which he 
made those comments. We were before a three-judge panel. I 
mean, we've sued the IRS and we've also sued on behalf of True 
the Vote and we've sued individual employees of the IRS.
    Now, one of the things that really, I have to tell you, 
galls me is not only has no one been held accountable, but we 
the taxpayers are paying the legal fees of the private 
attorneys who are defending the individual IRS agents in this 
litigation. So, you know, until--we have to find ways to hold 
individual Federal employees accountable and responsible when 
they violate the constitutional rights of citizens.
    Mr. Poe. Reclaiming my time because I'm about out of it. 
Nobody's been fired, to your knowledge, in the IRS? Some people 
might have gotten bonuses. Nobody's gone to jail?
    Ms. Mitchell. No.
    Mr. Poe. And don't you think this is, I mean, appalling 
that our government would use Soviet-style persecution of 
people who disagree and want to exercise the First Amendment 
freedom of speech? Don't you think that's a sad state of 
affairs with the IRS?
    Ms. Mitchell. It's outrageous.
    Mr. Poe. I yield back, Mr. Chairman.
    Mr. King. The gentleman from Texas yields back.
    The Chair now recognizes the patient gentleman from Idaho, 
Mr. Labrador.
    Mr. Labrador. Thank you, Mr. Chairman.
    Mr. Grossman, we've been following the ongoing waters of 
the U.S. regulations. The internal memos from the Army Corps of 
Engineers have stated that the EPA's definition is likely 
indefensible in court. Yet the EPA is continuing to move 
forward. Does this constitute, in your opinion, an overreach by 
the Administration?
    Mr. Grossman. Yes, it does. You know, the key precedent in 
this area is the Supreme Court's Rapanos decision. And while 
fractured, the controlling opinion was arguably Justice 
Kennedy's. And I think, as most legal analysts who view this 
rule have recognized, the waters of the United States rule goes 
well beyond anything that would be authorized by Justice 
Kennedy's opinion, to the point that isolated puddles and 
things like that would be subject to Federal jurisdiction.
    Mr. Labrador. Thank you.
    Do you think that Chevron provides the EPA the apparent 
authority to act in this manner?
    Mr. Grossman. You know, look, Chevron puts a thumb on the 
scale in favoring an agency in basically every case involving 
statutory interpretation, or at least a lot of them. But in 
this instance, it simply goes well beyond anything that would 
be acceptable, even giving the agency Chevron deference.
    This case raises at heart serious constitutional issues 
about limits on Federal power and about limitations under the 
Clean Water Act. The Supreme Court has recognized that as broad 
as that act may be, it is not infinitely capacious. And the 
waters of the United States rule simply goes well above and 
beyond anything that the courts have recognized as legitimate.
    Mr. Labrador. Thank you. While the waters of the U.S. 
regulations are a big issue today, there are smaller areas 
where the EPA is acting in the same manner. Can you name any of 
those areas where the EPA is acting in the same manner in 
impacting Americans without bothering to wait for congressional 
authority?
    Mr. Grossman. Well, gosh, you know, obviously the foremost 
one is the EPA's, you know, many headed set of actions 
regarding greenhouse gas emissions. You know, the Congress in 
2009 rejected a cap-and-trade scheme that was put forward by 
the Administration, and the Administration has subsequently 
discovered that it can impose the same regulations on the U.S. 
economy simply by fiat under statutory authority that's been 
buried in the Clean Air Act since the 1970's.
    I think this came as a surprise to many Members of 
Congress, but it also came as a surprise to people familiar 
with the Clean Air Act, given that the agency's understanding 
of its statutory authority under that act never encompassed 
these kinds of actions at all.
    While the Supreme Court in Massachusetts v. EPA may have 
given the agency some license to peek into greenhouse gas 
regulations under certain Clean Air Act programs, the type of 
cap-and-trade system that the agency is trying to implement in 
its clean power plan just is insupportable, and, to my mind, is 
the kind of thing that, you know, really demonstrates what's 
wrong with the current aggressive posture of agency statutory 
interpretation that we now live with.
    Mr. Labrador. Excellent.
    I was also made aware that the EPA admitted wrongdoing in 
funding a social media campaign to support its waters of the 
U.S. regulations. This is a clear violation of Federal law, but 
yet the EPA still went forward with the campaign, as you know. 
This is another example of an agency exercising far too much 
authority. How can we reign in these agencies?
    Mr. Grossman. Well, first, I would say, you know, the 
social media campaign operated by EPA, it's not only that it 
was illegal; it was also wrong. EPA was acting, in effect, to 
mislead the public about support for its own actions. And, you 
know, there should never be a circumstance when an agency of 
the United States Government is acting to mislead the public.
    You know, as to what Congress can do about this, you know, 
my testimony describes a number of different possible 
alternatives. But, you know, at heart, Congress needs to step 
forward and it needs to reclaim its legislative authority. You 
know, the executive branch is always going to be the portion of 
government that has the greatest agility, but this branch of 
government is the one that actually wields the power. It has 
the power of the purse and it has the legislative power, and 
those are very powerful things indeed.
    Too often Congress has delegated to the executive branch, 
particularly legislative authority, and has been unwilling to 
exercise its power of the purse in any forceful fashion. 
Congress can certainly do a lot of things to change the balance 
of power between the branches, but those are really at the 
heart of it, you know, where efforts should be directed.
    Mr. Labrador. Mr. Bernstein, I think the administrative 
state has swelled to proportions well beyond the original 
intent of the Administrative Procedures Act. Can this or any 
other Congress regain its authority without a major overhaul of 
the APA?
    Mr. Bernstein. That's a very profound question. I think the 
first thing we need to do is to enforce the APA itself, and I 
think there needs to be a way for--like these universities, for 
example, the example I gave earlier that are subject to this 
Dear Colleague letter--to be able to challenge that.
    Right now the problem is you get guidance from the agency 
or you get sort of informal prosecutions from the agency. We'll 
go after you if you don't do this or that. And you want to go 
to court, but there's no formal regulation that the courts can 
review. The agency claims, we're not acting in an official 
legal matter so there's nothing for the courts to do.
    So I think part of the answer has to be, as other people 
mentioned, less Chevron deference on that hand, but also more 
of a willingness of courts to be more--to allow people to 
proactively say, look, the agency is saying it's not official 
rule, but they're telling us that we have to comply. Don't look 
at the formality. Look at what the agency is actually doing. 
And once we get to that stage, if the courts can do that, I'm 
not sure how much more changes to the APA itself we necessarily 
need.
    Mr. Labrador. Thank you.
    I yield back.
    Mr. King. The gentleman from Idaho yields back.
    Seeing no further business to come before this--oh, the 
gentleman from Georgia has arrived. In that case, we'll 
recognize the gentleman from Georgia, my friend, Mr. Hank 
Johnson.
    Mr. Johnson. Thank you, Mr. Chairman.
    The Preamble of the Constitution of the United States of 
America lists one overarching theme, which is to establish a 
more--or to ensure a more perfect union. So--and then five 
things that they wanted to do in order to ensure a most--a more 
perfect union, which was to establish justice, ensure domestic 
tranquillity, provide for the common defense, promote the 
general welfare, and ensure the blessings of liberty to 
ourselves and our posterity.
    And I'm going to express my complete dismay in this Task 
Force's disregard of those ideals by targeting the legal 
administrative agency action created to clarify the previously 
complex and rigid work requirements in the Temporary Assistance 
for Needy Families program, otherwise known as TANF. The laser 
focus of this Task Force is to dismantle guidelines that would 
provide States greater flexibility in determining its work 
requirements in the program, and this is nothing more than just 
conservative politics against poor people.
    In my home State of Georgia, the TANF program has assisted 
over 50,000 low-income families in obtaining food and basic 
necessities. That's what it does right now. Prior to the 
issuance of the 2012 human--Health and Human Services guidance, 
TANF was the only employment program in which getting 
participants into permanent paid employment was not a key 
measure of success.
    States have devoted significant time to tracking hours 
rather than providing direct service to individuals which could 
help them improve their prospects for securing employment or 
helping them become more job ready. Moreover, participation in 
basic education was not a priority. Finishing college degree 
requirements did not count as a stand-alone activity that would 
allow single-parent households to continue receiving benefits.
    The previous work rate requirements heavily constrained the 
States' ability to use training and education, even where the 
evidence shows stronger employment outcomes for those who 
complete those programs. The Administration's lawful changes to 
the TANF program challenge--the lawful changes to the TANF 
program challenged States to engage in a new round of 
innovation that sought to find more effective mechanisms for 
helping families succeed in employment.
    I was mistaken. I would hope that this Task Force would 
immediately cease wasting taxpayer dollars debating legal 
rhetoric and start assisting everyday Americans.
    And with that, I would like to ask of Ms. Emily Hammond, 
were there any questions that were asked of you that you were 
not able to answer fully and which you desire to address while 
you have the time right now?
    Ms. Hammond. Thank you very much, sir.
    I would like to just respond to some of the suggestions 
that we do away with Chevron deference as a way of constraining 
agencies. I've previously, again, testified here that doing 
away with Chevron deference is a piecemeal and likely 
unrealistic approach to trying to enhance legislative oversight 
of what the executive branch does.
    What I would ask this institution to do is something that I 
think my co-panelists would agree with, which is to draft 
statutes clearly in the first place so that agencies can follow 
that direction. Right now, the agencies are doing the best they 
can, for example, with the waters of the United States. I 
disagree with my co-panelists. I do believe that that rule 
stays within the bounds of Justice Kennedy's opinion and should 
be upheld on review.
    The point is, the courts are doing their job. Chevron 
enables them to do their job but still polices those statutory 
boundaries. Thank you.
    Mr. Johnson. Thank you. And I'll note that you are hailing 
from Georgia. Welcome to Washington, D.C., once again. Good to 
see you.
    Ms. Hammond. Thank you.
    Mr. Johnson. Thank you.
    And I yield back, Mr. Chairman.
    Mr. King. The Chair thanks the gentleman from Georgia.
    And this concludes today's hearing.
    I thank all the witnesses for your testimony here today.
    And 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 again, and I thank the Members and 
the audience. This hearing is adjourned.
    [Whereupon, at 4:22 p.m., the Subcommittee was adjourned.]

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