daniel discusses the government's role in cyber security. >> now a house judiciary committee hears testimony on president obama's executive order on immigration. witnesses include legal experts who express whether the president has legal authority to issue the order. this is three hours, 40 minutes.

good afternoon, this hearing of the judiciary committee will come to order. without objection, the committee has authorized us to take -- this morning's hearing on president obama's executive overreach on immigration. u i'll begin by recognizing myself for an opening statement. i also want to point out to the members and to the audience in attendance today, you're all welcome to be here, but rule 11 of the house rules provides that the chairman of the committee may punish breaches of order and decor rum by censure and exclusion from the hearing. president obama has just announced one of the biggest congressional power grabs ever by a president. he has declared unilaterally that by his own estimation, almost 5 million unlawful immigrants will be free from the consequences of their lawless actions.

not only that, he will in addition bestow on them work permits and other benefits. and president obama has stated over 20 times in the past that he does not have the constitutional power to take such steps on his own. and has repeatedly stated, i am in the a king. we'll now ask for the video be rolled. >> the notion that i can just suspend deportations through executive order, that's just not the case. because there are laws on the books that congress has passed, there are enough laws on to the books by congress that are very clear in terms of how we have to enforce our immigration system, that for me simply through executive order ignore those congressional mandates would not

conform with my appropriate role as president. >> i can't solve this problem by myself. we're going have to have bipartisan support in order to make it happen. wire also a nation of laws, that's part of our tradition. and so the easy way out is to try to yell and pretend like i can do something by violatiing our laws. i can't simply ignores laws out there, i have to work to make them change. i have to bypass congress and change the law myself. but that's not how democracy works. see, democracy is hard. but it's right. changing our laws means doing the hard work of changie ing mi and changing votes, one by one.

>> sometimes when i talk to emigration advocates, they wish i could just bipass congress and change the law myself. but that's not how it works. i swore an oath to uphold to the laws on the book and i know some want me to bypass congress and do things on my own. believe me, the idea of doing things on my own is very tempting, i promise you, not just on immigration refortunately. -- reform. but that's not how ---that's not how our system works. that's-that's not how your democracy functions, that's not how our constitution is written. >> the problem is that i'm the president of the united states, i'm not the emperor of the united states. my job is to execute laws that are passed.

and congress right now has not changed what i consider to be a broken immigration system. and what that means is that we have certain obligations to enforce the laws that are in place, even if we think that in many cases the results may be tragic. >> we are a nation of immigrants, but we're also a nation of laws. so what i have said is, we need to fix a broken immigration system and i have done everything that i can on my own. >> what i have be what i have been able to do is make a legal argument that i think is absolutely right, which is that given the recourses that we have, we can't two everything that congress has asked us to do. what we can do is then carve out the dream act folks, saying young people who have basically grown up here are americans that we should welcome, but if we start broadening that, then

essentially i would be ignoring the law in a way that i think would be very difficult to defend legally. so that's not an option. >> as "the washington post's" own fact checker concluded, quote, apparently he's changed his mind. president obama admitted last week that i just took an action to change the law, end quote, and i should add a jeweled crown worthy of king james of england who dispensed with the revolution by dispensing laws passed by parliament. it is congress's duty to write our nation's laws and once they are enacted, it is the president's responsibility to enforce them. article 2, section 3 of the constitution requires the president to take care that the law be faithfully executed. president obama wants a special pathway to citizenship for 11 million unlawful immigrants and without any assurance that our nation's immigration laws that

will be enforced in the future and he's upset that america won't change his immigration laws to his liking. thus he has decided to act unconstitutionally under the guise of prosecutorial discretion. while presidents do have the power to exercise prosecutorial discretion, congre discretion, this power must be judiciously used. prosecutorial discretion is a powerful tool that must be used responsibly and that exercising prosecutorial discretion does not less on the in s's commitment to enforce the immigration laws to the best of our ability. it is not an invitation to violate or ignore the law. evening president obama's department of homeland security secretary jeh johnson has admitted to to the committee that there are limits to the

power of prosecutorial discretion and that there comes a point when something amounts to a whole scale abandonment. the obama administration has crossed the line from any justifiable use of its authority to a clear violation of his constitutional responsibility to faithfully execute the laws. there is a difference between setting priorities, focusing more resources on those cases that seem more serious and setting enforcement free zones for millions of unlawful aliens. by boldly proclaiming that there will be no possibility of removal for millions of unlawful aliens, president obama eliminates entirely any deterrent effect our immigration laws have. al he states plainly that those laws can be ignored with impunity, such actions will

encourage others to come here illegally, just like his action for childhood arrivals program encouraged tens of thousands of unaccompanied alien minors and families to make the dangerous trek to the united states. the president relies on a memo prepared by his justice department's office of legal counsel, to explain that those actions are constitutional. immigration's discretion in -- limits on enforcement discretion are both implicit in and fundingmental to the constitution reese allocation of governmental powers between the two governmental branches, the memo admits that the executive cannot under the guise of exercising enforcement discretion attempt to effecti effectively rewrite the laws to match it's effectiveness.

in heckler versus chieney decision, as to amount to anned a jew indicatithe memo is an in president obama's actions. the president also mistakenly claims that his actions are nothing new. it is u true that previous presidents of both parties have provided immigration relief to groups of aliens, sometimes themselves abusing the power of prosecutorial discretion, however, usually the actions were based on emergencies in foreign countries, thereby ar y arelying on the broad constitutional power given to a president to conduct foreign affairs. for example chinese students were protected from deportation after the tian'anmen's square, and after the devastating earthquake of 2010.

what about president george h.w. bush's family fairness policy which the white house cites to justify his power grab? size and scope matter and only about 80,000 aliens applied to that program. as to the white house's claim that it covered more than 1.5 million aliens. "the washington post" fact checker concluded that the 1.5 million figure is too fishy to be cited by either the white house or the media. indeed, the 100,000 estimate that the -- "the washington post" assigned the white house claims three pinocchios, in granting deferreded action to a totally unpress defected number of aliens, president obama has clearly kmeeded his constitutional authority. no president has so abused and misused the power of prosecutorial discretion as has president obama. by acting lawlessly and assuming

lettigislative power, the obama administration is driving full speed ahead to a constitutional crisis, tilting the scalers of our three-branch government in his favor and threatening to unravel our system of checks and balances. president obama has entered the realm of rewriting the laws when he can't convince congress to change them to match his personal tastes. as law professor dade rubenstein has written. the more broadly or generally a systematic policy applies, the more it takes on the hue of law. rather than working constructively with the new men and women americans elected to represent them in congress, the president is making his relationship with congress increasingly toxic by unconstitutionally acting on his own. tragically, president obama's shortsighted actions have further set back congressional efforts to enact legislation to reform our broken immigration system.

i look forward to today's hearing and the testimony of our imminent witnesses. now i yield to mr. conyers for his opening statement. >> thank you. ladies and gentlemen -- >> in the hearing room, members of the audience must behave in an orderly way or they will be removed from the audience immediately. [ inaudible ] >> remove the members of the audience from the hearing room.

[ inaudible ] >> the gentleman from michigan for the interruption, but he is now advised to proceed with his opening statement without penalty for the delay. >> mr. chairman and members of the committee and those who have joined us here this afternoon in the house judiciary committee, i would respectfully disagree with a number of assertions by our

chairman. president obama did not change the law, he acted within the law consistent with the constitution and past precedent. now i have not noticed that there were many constitutional law professors on the committee, and i am certain that when president obama decided two weeks ago to use his authority under existing law, to do what he can to fix our broken immigration system, i could have not been more pleased. i defy any of my colleagues on this committee or anyone in congress to tell me our immigration system is not broken. we know that it is.

but i am disappointed that this congress, like a number of them before it, has done nothing to fix the problem. republican leaders in the house won't allow us to vote on a bipartisan bill, s-744 that passed the senate last year, with 68 votes out of 100. this committee has marked up a series of bills each one of them les palatable than the next, but hasn't even reported them to the floor. and so i would urge that you consider that the only bills that we have seen on the floor would have deported dreamers and the parents of united states

children denied basic protections to children fleeing violence and persian accumulation. -- persecution, now faced with this congressional inaction, the president of the united states decided it was time to take action. the president's reforms will help to secure the border, focus our resources on deporting felons, not families. and require undocumented imp grants to pass a criminal background check and pay for their fair share of taxes in order to register for temporary protection from deportation. now these actions will keep millions of families with united states citizen children from being torn apart. families led by hard working mothers and fathers.

and finally, these actions are not only appropriate, but they are lawful. there's a great deal of information available, publicly to support the president. on november 20, 11 prominent legal scholars wrote a letter explaining the president's action at, quote, explaining that the president's actions are within the power of the executive branch and that they represent a lawful exercise of the president's authority. i ask unanimous consent to include that in the record. >> without objection, it will be made a part of the record. >> thank you. >> the letter was signed by a former head of the department of justice office of legal counsel

and a person who worked in the solicitor general's office. it was signed by liberal professors like lawrence tribe and conservative professors like eric posner. five days later, 105 immigration law professors echoed that conclusion and provided substantial constitutional, statutory and regulatory authority for these actions. that letter also reviews the historical precedent that support the president's move. and i ask unanimous consent that the letter from 135 investigative immigration professors be included in the record. >> without objection, it will be made a part of the record. >> thank you.

as people who were once charged with providing legal counsel to the government on this precise question, they write that, quote, we have all studied the relevant legal parameters and wish to express our collective view that the president's actions are well within his legal authority, in quotation. and of course, the administration requested a formal opinion by the office of legal counsel and made the document public nearly two weeks ago. and i ask nacunanimous consent include in the record the office of legal counsel opinion. >> without objection, it will be made a part of the record. >> thank you, again. and of course the administration requested a formal opinion by

the office of legal counsel and made this document public nearly two weeks ago. now i know that many members on the other side of the aisle are not pleased about the president's decision. we continue to hear calls for shutting down the government. some have even talked about censoring the president or suing the president. or even worse. but it seems to me, ladies and gentlemen, that the majority now has a choice. they can do what we were elected to do. they can come to the table and work to pass a real immigration reform bill. they can hold a vote. and that is exactly what i am prepared to do today.

i thank the chairman for his tolerance and i yield back any time that may be remaining. >> chair thanks the gentleman and now recognizes the eygentlen from texas, mr. smith for his opening statement. >> thank you mr. chairman, i also want to thank the gentleman from south carolina for yielding me his time. [ inaudible ] >> i'm not agreeing with u you. >> the committee is not in order. the capitol police will remove the disruppive members of the audience immediately. >> i have been here 30 years, this isn't justice, man. 30 years. 30 years and y'all are passing a bill.

>> my children were born in this country. [ inaudible ] please. give us the opportunity. [ inaudible ] >> you may leave now and the capitol police will escort you out as soon as they return.

>> the gentleman from texas is recognized. >> thank you mr. chairman. before he took office, president obama swore an oath to, quote--yet he is now taking executive action to legalize millions of illegal immigrants, all on his own. contrary to constitution.

this administration is undermining the separation of legislative and executive powers thatfounders wrote into the constitution to prevent tierney, and president obama is violating the constitution which explicitly reserves immigration policy for congress. article 1, section 8 clause 4 of the constitution. that congress shall have the power to -- uniform rule of naturalization. the supreme court has long found that this provision of the constitution grants congress full power over immigration policy. in addition by suspending the enforcement of our immigration laws against nearly half of the illegal immigrants in the united states, president obama is violating his duty under the conversation that the laws be faithfully executed.

president obama further described the limitations placed on his role as president. he has explicitly stated many times as the chairman noted that he does not have the power to grant executive amnesty without the authorization of congress. for instance on march 28, 2011, he stated that, with respect to the notion that i can just suspend deportations through executive order, that's just not the case. because there are laws on the books that congress has passed. the executive branch's job is to enforce and implement those laws. and congressional scholars agree, congressional law professor john hill of the indiana school of law writes that, quote, there is a word for the president's plan to issue an executive order granting residency status for over 5 million undocumented aliens now living in the u.s. unconstitutional. this is unquestionably law

making. president obama has now apparently forgotten what any first year law student understands, that the president cannot make a law without the consent of both houses of congress. congressional law professor of the south texas college of law writes, it cannot be the rule of law that the president can create arbitrary criteria of where the law will not apply and then exempt anyone who meets that criteria. this is a very broad type of policy against enforcement that is so extreme as to announce an abdictation of the president's authority. despite the heavy media bias in favor of amnesty, a recent nbc news "wall street journal" poll found that americans oppose his executive amnesty by 48% to 38%. the american people know the

president's executive amnesty grants work permits to millions of illegal immigrants, which hurts many hard working americans who struggle to find full-time work and good paying jobs. the obama administration has placed the interests of illegal immigrants above the needs of many employed and unemployed americans. this amounts to a declaration of war against american workers. the constitution is not a technicality, it is a document that is preserved our freedoms for more than two centuries. every american should be very concerned about president obama's violating the constitution and not enforcing the laws of our nation. chair thannings t s -- >> thank you mr. chairman p when president obama spoke from the east wing of the white house two

weeks ago about the steps he would take to improve our broken immigration system, he was responding to loud and sustained calls for action from people all over the country. he can't change the law, but he can take certain actions within the law. to the president recognized what we all know, the immigration system is badly broken. many families face the threat of separation from deportation every day. skilled immigrants want to drive innovationings and create jobs and opportunities here, but instead we erect barriers and make them go elsewhere to build their companies. i was thinking with my family at thanksgiving all we have to be grateful for, but i'm not grateful that the farm workers

that put that food on our table -- i have worked across the aisle to enact sensible immigration reforms and we have come close several times. in 2006, the senate passed a by partisan bill, but the house republicans squandered the opportunity to close the deal and instead passed an enforcement only bill. last year, the senate again passed a bipartisan immigration reform bill that brought historic adversaries, the chamber and the afl-cio, growers and farm workers, everyone together, with a 68 vote in the senate and again we did nothing with that opportunity here on the house side. in fact i was parol of our own group of eight here in the house where we tried to craft a bipartisan house bill and we did actually write a bill, but in the end, we were unable to move

forward. so it was of course in the face of congressional inaction that the president decided to do something. he recognized there are costs to doing nothing and he looked for opportunities that's permitted in current law to avoid some of the costs. there are many things the president can't do to fix our immigration system and nothing the president did alleviates congress from taking action. i think it's important to remember that the president announced reforms in many different parts of the immigration system, including a new strategy to force enforcement on the southern border, a may raise for i.c.e person nell. i haven't heard anybody complaining about those efforts of the president. no, it's only about the families of american citizens shouldering. and this talk of executive

overreach, really is about deporting, i think, the parents of u.s. citizen children and i think it's a darn shame. by this point, much has already been said about the legal authority going back to really, eisenhower in the 50s, every president has used similar or same authority in the immigration context. the authority stems from the president's constitutional duty to take care that the laws be faithfully executed. in heckler v cheney, the supreme court explained to the president that this does not -- in the supreme court of arizona vrz the united states struck down the majority of arizona's immigration law, broad discretion exercised by federal immigration officials extend to, quote, whether it makes sense to pursue remol at all. in 1999 members of congress from both parties, including members who still serve on this

committee, wrote to then attorney general janet reno and asked her to issue specific instructions to guide in the use of prosecutorial discretion and several years later, congress in the homeland security act specifically directed the director of homeland security to enact national immigration enforcement policies and priorities. that's precisely what secretary johnson has done. now to the family fairness program, which serves as an important historical precursor to the deferreded action for parental -- was announced at a 1987 hearing and it offered protection from deportation to certain spouses and children who were legalized in the 1986 act, when the program was expanded under george h.w. bush in 1990, the ins commissioner estimated that as many as 5 million people

will be protected from deported. i heard the chairman's comment about pinocchio and "the washington post," but i would like to ask for unanimous consent to put into the record, first the decision memo that announced the family fairness policy, dated february 8, 1990 where the department estimates that the family fairness policy provides voluntary departure and employment authorization to potentially millions of individuals and the other document, also dated february 8, 1990, which indicates that the intention or expectation is that greater than 1 million ineligible family members will file for the benefit. >> without objection, those documents will be made part of the record. >> now when then mission never mcnairry -- said it's vital that we enforce the law against

illegal entry. the split families encourages violations of the law as they reunite. a strong enforcement strategy can also be a humane enforce independent strategy. it's no different than today. if there's one key difference between the family farngs program and the deferred action program announced by the president last month is that president reagan and bush offered protection to people who were knowingly and intentionally denied protection by congress when they passed the 1986 act. by contrast, the president is now acting in the face of historic intransigents by house republicans who will if no actions taken by the end of this month have wasted two opportunities in eight years to advance immigration reform bills. the president's actions are lawful, they're also smarkt, because they will allow dhs to focus serious -- finally they

are consistent with basic american values like accountability, family unity and compassion. i would note that hr 151 -- there's still time to take this bill to the floor for a vote. and i hope that republicans will do so. and finally, i just want to respond very briefly to the argument and the video that we saw of the president making various comments about the limits of his authority. i guess if the president had stayed multiple times that five plus five equals 15, and then said five plus five equals ten. second the timing of the president's statements are important. -- >> how many finallies can we have, we're going to run out of

time here. >> the chair is giving some leniency because the chair's own opening statement was in excess of five minutes. >> i didn't know that but i am almost through, i will just note that those statements were made before the president asked the secretary of homeland security to do a complete review of what could be -- that resulted in his memorandums by the office of legal counsel, and finally as we will see throughout this hearing, the legal question isn't even a close one. the president has clear legal authority to form removals when it's in the national interest. chief justice roberts reaffirmed that principle just two years ago, our immigration law has recognized this authority, past presidents have used this authority regularly, our president is doing so now and i for one am grateful that he is. and i yield back. >> thanks to the gentlemen,

without objection, additional opening statements will be made part of the record. we thank our witnesses for joining us today. if you would all please rise we will begin by swearing you in. do you and swear that the testimony you give will be the truth and nothing but the truth so help you god? all the witnesses responded in the affirmative. the distinguished professor of jurs prus dense at chapman university. and the professor of law at the university of illinois. he is the co-author of the seven volume treatise on constitutional law, the author of modern constitutional law and he has co-authored the most widely used course book on legal

ethics, problem s and materials on professional responsibility. he achieved his ba from harvard university, where he was a member of the harvard law review. jay seculo, a distinguished professor of law at regent university, he has argued 12 case before the nation's highest court, including mcconnell versus fec where he ensured the constitutional rights of young people remain protected with a unanimous decision guaranteeing that minors can participate in political campaigns. mr. seculo received his phd from regent university, with a dissertation on american legal history. he's an honors graduate from mercer law school, where he served on the mercer law review. mr. thomas h. dupre is a member

of the firm's litigation department and it's appellate and constitutional law practice group. in 2013 and 2014, chambers and partners named mr. dupre one of the leading appellate lawyers in the united states. in 2014, mr. dupre argued and won by unanimous vote a landmark personal jurisdiction case in the supreme court. prior to joining gibson dunn, mr. dupre served as deputy attorney general in the department of justice, ultimately becoming the principal deputy assistant attorney genera attorney general. mary elena encapiea, detector of the national immigration law center, he is a public interest

lawyer who specializes in advancing and protecting the lights of immigrant workers, particularly those who are undocumented. she has provided strategic assistance and training to thousands of social service providers, labor unions and community based organizations. she holds a jury ris doctorate degree from the school of law, served on the commission on immigration and is currently a member of the board of directors of jobs with justice and welcome.u.s. i welcome all of you, i would ask that each witness summarize his testimony in five minute ors less, your entire statement will be made part of the record. to help you stay within that time limit, there is a timing light on your table, when the light switches from green to yellow, you will have one minute to conclude your testimony. when the light turns red, that's it, time is up and it signals that you should signal your sentence and your statement.

so thank you all, we will now provide first with mr. rotunda. >> thank you mr. chairman. i think it's important to explain i favor immigration of the united states. it american indians had strict immigration laws, perhaps we wouldn't be here. my parents did not know the language, but did not know the customs. they were strangers in a strange land. my mother told me years later, the first night in the united states, though she was well past the age of toilet training, she had an accident, she was so excited to be heemplt my father was a spy for the americans, he was a good spy because he spoke italian like a native. when he was in his 90s, i remember taking him to the va doctor, and the doctor said, looking at the paper, so you're italian, my father said, no, american. you have to realize, he did not

know who was president, he did not know what year it was. he did not know my name. though he knew i was a friend. but he knew he was an american. so i favor reform along the lines of the president, whether congress exercises the comprehensive immigration reform or goes one step at a time isn't important. the government tells us there's over 11 million undocumented aliens here, we're not going to march 11 million people south of the border. if democracies just don't have mass deportations. but we also all have to agree we have to secure our borders. if a 15-year-old can cross our borders, an al qaeda agent can as well. the issue isn't whether -- whether it's congressional for the president to act unilaterally to write our immigration laws and change the status of almost 5 million americans, almost half of them are here without papers.

the president's executive power does not give him the power to govern by decree, it does not give him power to suspend the law. if he can actually do this and get away with it, i guess future presidents can say they'll suspend more acts of the affordable care act. the president said in his -- repeatedly over the last several years, i think over 20 times, he it traited and reiterated, he does not have the power to do this, and then he did it. why? he says in his statement to the people, congress has failed. congress doesn't fail when it fails to enact a presidential proposal. if the constitution were a computer program, we would not say that the separation of powers is a bug, it's a feature of the program. the framers wanted to make it difficult to enact laws so we have to learn to compromise. the president won't get all that he wants. both sides of the aisle are

going to have to compromise as well. article 2 provides that the presidential take care that the laws be faithfully executed. this clause is not a general grant of powers, actually a limitation on powers. the president must execute the law faithfully, a whole series of the action of the -- has said this repeatedly, that the president cannot suspend the laws, that he has prosecutorial discretion for approximately acts, refuse to prosecute criminally but not civilly. deportation the supreme court has told us is civil not criminal. the president tells us this deal opportunity apply to anyone who comes recently. he says congress has failed and are we a nation that cruelly rips a child away from their parvelts arms. apparently we will accept this cruelty and rip children from their parents arms. they came here before the

arbitrary date of jampb 1, 2012. why couldn't it be january 2, or december 31st? the new dhs policy reads an awful lot, looks like a statute, it has six single spaces pages, it talks about provisos, benefits, an arbitrary date. it grants apparently for the newspapers, it said repeatedly that these people will now get social security cards. we don't know how social security cards have anything to do with prosecutorial discretion. the olc opinion offers a theory that it relyings on historical incident. and second reading a lot into a fi selected segments of the statute. case law is precedent, historical exampleless are not. in any event, others have already distinguished those the examples. they're not part of my -- about my theory, i'm not going to coupe indicate their efforts in

any event. no other president has said he as acted because congress has failed and issued an immigration order. no other president has said that he's doing something that over the last several years has repeatedly said is unconstitutional. the president should at least explain or the olc opinion should explain why that was wrong. if somebody decided for years that five and five is 11 and suddenly it comes out to 10, we would like to know why? on the road to damascus, he got hit by lightning? why did he change his mind? to the "new york times" said that obama directs congress to enact overall immigration. the olc opinion admits that a general policy of nonenforcement would addition close or exercise case by case discretion. >> regular order, mr. chairman. >> mr. rotunda, if you could summarize the remainder of your

statement. it will all be part of the record. >> in my papers i cite about 10 olc opinions as well as supreme court opinions that say that the president does not have discretion to refuse to enforce civil law and to the olc opinion ignored all of that. they even ignored the statements and the important footnote in the heckler opinion, on which they relied. thank you. >> thank you mr. rotunda, mr. secula, welcome back. al. >> on behalf of the american center for law and justice and over 75,000 of our members, thank you for allowing me to appear today. presidential authority is a task that must be engaged in with only one question. does the president's actions meet constitutional scrutiny? in this case, they do not. it is humbling for this grand song of a russian imgrarnlt to

be speaking to you today. my father, his father came here in 1914. in 1929, he filed for citizenship, filed ed d a petit for naturalization. two years later a united states district court judge in brooklyn new york, granted sam seculo american status. i'm the i get to argue cases before the supreme court of united states and appear before this committee and it's a humbling thing. immigration law was complex for my grandfather in 1931 and it is still complex today. the constitution now -- the constitution however is not. our system of government is straight forward. congress writes the law, the president executes the law, the judiciary interprets the law. this is a separation of powers mandated by our constitution. the president does not make the law. now, with due respect, some of the statements that have been made, the president has stated that he changed the law.

and i don't believe there's anyone on this committee that believes the president has the authority to change the law. he was being heckled at an event, similar to what we experienced today. there's passions on the side of the issues. i understand and i think we all understand. i join the professor and believe in a pathway to citizenship. but i believe to do that through the legal process set forth in the constitution and the president doesn't get to change the law. he actually said that, though. that he changed the law. that was how he handled the question that was asked. he changed the law. presidents cannot change the law. he can't do so constitutionally. he cannot do so under supreme court president and can't change the law to purport with his preferred public policy, much of which i share. the president's executive action really disrupts the delicate balance of separation of powers that is the hallmark of our constitutional framework.

justice stated that regarding immigration and immigration issues, talking about being the exclusive power of congress, that the formulation of these policies is entrusted exclusively to congress. now 5 and 5 does not equal 15. no matter how many times you say it. and when 5 and 5 then equals 10, which is correct, that pasting constitutional wrong is not what made that correct. so this reliance that we've seen on some that president reagan's and president bush and president eisenhower made or issued executive action or executive orders, which in some cases may be clearly distinguishable because they didn't set forth a new class, but even if they were not distinguishable, past constitutional acts do not get better with time. they are still just that, constitutional actions. president obama also misplaces his reliance on the authority generally granted to the sec taif of homeland security. it's very different to utilize your resources to determine the

status of your prosecutorial mandates and how you're going to use your limited resources. the condition of entry, though, of classes of aliens and having that denied or granted, and creating a class, a new class, is not what the president has the authority to do. as sympathetic as it might be to the plight of people involved, he simply doesn't have that constitutional authority. with all the emotion we've even seen today, you have to put that aside. it comes back to the same question, does the president have the snort by the way, if you look at the olc memo and compare that with what the president said what the deal is, i asked my colleague if she would recommend her clients accept the deal. the deal the president talked about did not talk about discretion with the agency that could be terminated at any time with case by case determination. that's not the deal the president talked about. that's not the deal the president put in place. and i would not recommend my client to accept the deal that

the president has actually offered which is very different from the deal outlined in the olc memorandum. i would ask that to my colleague because standardless absolute discretionary review by government agencies is something i've been dealing with for 30 years at the supreme court of the united states. and it generally does not go very well for the agency. olc said it was required, though, for the president's actions to be deemed constitutional. i said i would not recommend my client to take the deal. in conclusion, in our view, president obama's actions are constitutional. president obama's actions are unlawful. violate the separation of powers and in conclusion, even with sympathy to the cause of immigration reform, impatient presidents may not violate the constitution if they don't get their way. thank you, mr. chairman. >> thank you. mr. due pree, welcome. >> good afternoon. thank you for inviting me to

testify and to share my thoughts on the constitutionality of the president's directive granting deferred action eligibility to approximately 5 million people who are currently here in the united states in violation of our immigration laws. i served as principle deptive attorney general under president bush. i litigated and advised the white house on moigs policy and reform. in my view, president obama's actions exceed his authority under the constitution. the president was correct on the many occasions where he stated that he did not have the power to do what he has now done. reasonable people can disagree over how best to fix our immigration system and while there can and should be a robust public debate about how to address the status of the approximately 11 million people who are here in this country illegally, there should be no doubt that by unilaterally acting through executive action rather than through the

congress, the president has circumvented the process our founder's envisioned. the framers of our constitution were well aware of the dangers of executive overreach. that is why they wrote a constitution providing for the separation of powers and why the first sentence of article 1, section 1 of our constitution states, quote, all legislative powers here-in granted shall be vested in the congress of the united states. the framers also spoke to the president's duty to enforce the laws enacted by this congress. article 2 section 3 provides, that the president, quote, shall take care that the laws be faithfully exec cuted. close quote. in my view, president obama's actions on immigration violate these constitutional provisions. his actions violate article 1, section 1 and separation of powers by rewriting the laws of the united states not through legislative amendment but through executive fiat. they also violate article 2, section 3 because they amendment on the abdue indication of the

executive's duty to faithfully execute the laws of united states. let me say a word about the take care claw claus. the president's duty is not optional. the constitution says that she shall take care that the laws be faithfully executed. and the constitution's use of the word faithfully unscores that the president is to execute laws in away that maintains fidelity to congressional design. it is hard to see how an order directing that federal law not be enforced as to approximately 5 million people amounts to faithful execution. the take care clause does not give a president discretion to choose which laws he will enforce and which he will not as the head of the office of legal counsel under president clinton wrote, kwoek, the supreme court court and the attorneys general have long interpreted the take care clause as standing for the proposition that the president has no inherent constitutional authority to suspend the enforcement of the laws

particularly of statutes, closed quote. the consequences of thissish slew not confined to immigration. if the president may use executive authority to simply ignore laws he does not like, then it would be possible for future presidents to revise everything from federal criminal law to tax law to environmental law and beyond. of course, president obama's directive goes beyond mere nonenforcement of the law. it has the effect of affirmatively granting benefits, including the right to apply for work permits to those falling within its am bit. they have revoked prosecutorial discretion is well established in your nation's legal traditions. the concept predates the founding and finds its roots in the common law of england. now one can dispute that prosecutors in this context executive branch officials with the constitutional may exercise discretion in setting

enforcement priorities in deciding what charges to bring or whether to bring charges at all. but there are limits on prosecutorial discretion, it applies to individual cases situations in which the judgment of the prosecutor it would be unjust or otherwise inadvisable to apply the full force of the law based on the circumstances of an individual case. when i served on the justice department, can recall many instances where we or the department of homeland security made a determination to exercise discretion in individual cases. prosecutorial discretion, however, is not so elastic a concept that can stretch to encompass what the president has done here. granting blanket relief to a potential class of 5 million people. that is what makes president obama's action different from prior instances in which presidents have granted immigration relief. the scale of president obama's directive significantly exceeds what past presidents have done. more over in prior instances, the executive was acting to

implement a new statute consistent with the will of congress. here, the executive is taking action precisely because congress has refused to act in the way the president wants. indeed, the president is attempting to write into law what congress deliberately chose not to write into law. finally, as many on this committee will recall during the bush administration, we were strong advocates of immigration reform and we sought to get a bill through congress when we were unsuccessful, many of us were disappointed and frustrated. but we did not attempt to achieve through executive fiat what we could not achieve through the legislative process. we respected the system the framer's established. i thank the committee for convening this hearing and look forward to your questions. >> thank you, mr. dupree. >> great. >> we are pleased to have you with us as well. >> thank you, chairman. members of the committee, thank you for the opportunity to appear before you today. my name is marry lain that i'm the executive director of the

national immigration law center, an organization that is dedicated specifically to helping families low-income immigrant families like mine to contribute their best to our country and achieve the american dream. i'm an immigrant from colombia, i arrived as a child two rhode island when my father was recruited to work at a textile factory there. my parents, like the parents of those who might be eligible for deferred action under the president's executive authority, came here in pursuit of the american dream for their children. last month, president obama announced policy changes that bring much-needed humanity and transparency to our immigration system. the president's actions are well within the scope of his authority. he is relying on the doctrine of prosecutorial discretion which you heard about which provides the department of homeland security as well as every law enforcement agencies in this country the authority to set enforcement priorities to target

resources and to shape how the law will be implemented. the doctrine of prosecutorial discretion is well established with solid constitutional, legal and historical grounds. first, it is well settled in the courts that the executive officials have wide latitude in exercising this prosecutorial discretion. in the seminole case of heckler versus shaneny, the supreme court held that the agencies decision to enforce or prosecute in either civil or criminal matter is a matter of the, quote, agency's absolute discretion, end quote. this includes the agency's decision to prosecute or not to prosecute. in 2002, in enacting the homeland security act, congress expressly charged the executive branch with, quote, establishing national immigration enforcement policies and priorities, end quote. secondly, exercising prosecutorial discretion to deprioritize the deportations for certain individuals is

consistent with the take care clause in article 2 e section 3 of the constitution. again, the supreme court held very clearly in chainny in heckler versus chainny that because the executive branch is rarely provided enough funding to enforce every provision of every law against every single person in our country, the executive branch must develop enforcement priorities. the heckler court specifically says, quote, faithful execution of the law does not necessarily entail acting against each technical violation of the statute, end quote. finally, in addition to the legal authority, there is ample historic precedent to the obama administration's actions. again, every administration, republican and democrat, since president eisenhower, have exercised prosecutorial discretion to protect immigrants from deportation. president obama's executive actions are also good policy. not only will the president's

actions bring order and transparency to dhs's enforcement priorities, will also add billions of dollars to our coughers. removing the threat of retaliatory deportation for workers will also improve working conditions for american workers. moving workers from the informal economy to the formal economy will improve america's economy. and by creating a process by which individuals can come forward, apply, register with the government, the government will be able to refocus its enforcement priorities instead of separating families. most importantly, this is not about politics or abstract numbers. this is about our families. this is about our communities. it is about our country. one cannot underestimate the significant impact that this policy change will have on those who might benefit. the mothers, fathers, young immigrants who are here, who are working, who are studying, w