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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 

( 

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

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

MIMI WALTERS, California 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

EXECUTIVE OVERREACH TASK FORCE

STEVE KING, Iowa, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

DARRELL E. ISSA, California 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

RON DeSANTIS, Florida 

KEN BUCK, Colorado 

MIKE BISHOP, Michigan 

STEVE COHEN, Tennessee 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

JUDY CHU, California 

TED DEUTCH, Florida 

CEDRIC RICHMOND, Louisiana 

SCOTT PETERS, California 

PAUL B. TAYLOR, Chief Counsel 

JAMES J. PARK, Minority Counsel 
(III) 

C O N T E N T S 

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 

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 

(1) 

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. 
2 

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 81⁄2 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 
3 

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. Sim-
4 

ply 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:] 
5 
6 
7 
8 
9 
10 
11 
12 
13 

*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. 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.’’ * 

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. 
14 

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 
15 

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. 
16 

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. 
17 

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 
18 

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 
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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 

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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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 
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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 dayto-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, 
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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 
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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. 
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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 
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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 
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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, 
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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 
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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. 
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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.’ ’’ 
99 

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. 
100 

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 superPACs 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. 
101 

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. 
102 

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 
103 

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, privacyviolating questions, infringe on—this is something I think gets lost 

in this debate too. 
104 

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— 
105 

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, 
106 

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. 
107 

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 
108 

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 leftwing 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? 
109 

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 
110 

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 account-
111 

able 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 
112 

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-andtrade 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 
113 

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. 
114 

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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