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, will be able to contribute even more

fully to our society. reasonable minds might disagree on the politics or whether this is even real good policy. but what issen deniable is that the status quo is wholly unacceptable. lupita, the brave 13-year-old who is in the audience today, understands the psychological trauma the threat of deportation can cause. i met her over eight years ago when her father was detained in a large los angeles-area raid. during the years that followed, lupita suffered and struggled. most americans understand that u.s. citizens like lupita need their parents to help them grow. the president's actions are good news for lupita and her little sister. because her mother isabel who is also here today should qualify under this new deferred action program. every daughter needs their mother. and our nation's laws should

support strong families rather than rip them apart. what is truly at stake here today is the fight for the sole of our nation. are we going to continue ripping parents away from their children? are we going to deport young immigrants who want to contribute their best to helping make america great? or are we going to use existing law to bring order, fairness and equality to our immigration system so that immigrants with strong ties to our communities can fulfill their full human potential? our country can and must do better. the american people have long supported the principles behind these new immigration policies because they recognize that they are good for our nation. i trust that in your hearts and minds you and i share a desire to do what is best for our country and i look forward to working with you toward that end. thank you again for the opportunity to testify today and i look forward to answering your questions. >> thank you. we'll now begin the questioning

and i'm going to reserve my questions. at this time, i recognize the gentleman from wisconsin, for his questions. >> first of all, i think i should emphasize the point that this hearing is on whether the president's action is constitutional. the policy questions are not within the scope of this hearing. and i think will end be being debated at a later point probably ad nauseam. what i would like to do is ask a couple of questions. first of all, why do you think the president on 22 occasions said that he didn't have the power to do what he did and then did a 180? maybe you can start out with an answer to that. >> i would happy to. unfortunately i think the president was talking politics.

he made those comments much to our dismay that we believe the president did and does have the legal authority. the president on a number of those occasions was specifically talking about immigration reform. he has been so focussed on getting immigration reform done with congress that he continually told the immigrants right community that he could not stop -- >> let me ask mr. sekulow what his opinion is. >> he was correct when he said he could not make the law or change the law. he was speaking correctly. when he made the statement that he has changed the law, he recognized also that he did something he thought he changed the law. he doesn't think, by the way, it was simply a policy decision. he stated he changed the law. as i said in my testimony, i believe there's anybody on this committee that believes the president had the authority to change the law. >> okay. >> he doesn't get to do that. >> okay. now, his own dhs secretary jay

johnson has stated there comes a point when something amounts to a wholesale abandonment to enforce a duly enacted constitutional law that is beyond simple prosecutorial discretion. i think that at least three of our witnesses believe that the president z has crossed that line. could you be more specific and let me start with mr. dupree. be brief and then work that way. >> well, thank you mr. sensen brener. i think that secretary johnson was correct when he says that there is a line. i think in this case the president not only crossed the line but that line is far, far, far in the distance. >> that's kind of like the line he drew on syria, right? >> i think that is an apt analogy. >> thank you. >> i don't know that the constitution requires a certain number of people beyond which he could not grant deferred action to. i don't think the constitution

speaks to that -- >> okay. my time is limited. >> i'm going to quote very quickly from the opinion that's been quoted by members of this committee. presidential action violates the constitution this is the quote if he expressly adopts a generally policy effect abdue indication of the statutory duty. that's what has happened here. the president changed the law. >> mr. rotunda, briefly. >> two things. >> please turn on your microphone. >> all right. heckler v chainny, it said the agency's decision not to prosecute or enforce is generally committed to an agency's absolute discretion. the olc does not quote the next sentence the reason for this is because of lack of standing. the standing has changed dramatically. massachusetts vpa is an example. maybe now we'll get a test of this. but the president -- it's mind boggling that the president

supporters say that we shouldn't -- when he told us earlier that he didn't have the power, he was lying. that was a political campaign. my jaw has dropped. >> okay. good. now, the final question i have and somebody can step up and be first. is doesn't a wholesale application or prosecutorial discretion to thousands or millions or maybe several millions of people amount to a repeal of a duly-enacted law? does the president have the power to do that through prosecutorial discretion? >> the president could certainly pardon people, prosecutors exercise discretion on a case by case basis every time. you do see a -- that's called prosecutorial discretion. what you don't see is a decision

being made we're not going to enforce the s.e.c. laws in the united states. that would be rewriting the law which is a president or the executive can't do. >> i agree with that and i would add to it that our constitution does confer discretion on the executive to exercise discretion on individual cases. when you do what the president has done here, you cross the line from permissive action under the executive's rights under article 2 entrenches on this congress's authority to saw what the law is. >> thank you. my time is up. >> chair recognizes the gentleman from michigan for his questions. >> thank you. attorney hanicappe, you've talked about prosecutorial discretion and whether it can really encompass a program that allows people to come forward and affirmatively apply for protection. do you consider this a form of

prosecutorial discretion, ma'am? >> yes, congressman. basically prosecutorial discretion in the immigration context, there are over 20 different types of discretion. here what the administration has done has simply identified what the levels of priorities are and has determined that parents of u.s. citizen children and lawful permanent residents should not be deported and they will be given an opportunity to come forward. this is individual adjudication. this is not mass blanket giving people work authorization simply because they're a parent of a u.s. parent. they have to come forward and pass a criminal background check and show they meet all of the individual criteria and only after an individual adjudicated determines that that person merits deferred action will they be able to under existing regulations nothing new, existing regulations apply for unemployment authorization document. >> of course. now, let me talk about deferred action, which has existed for

decades. dating back more than 40 years ins exercised prosecutorial discretion to grant non-priority status based upon humanitarian consideration, but in this case, the administration says it will also offer work authorization to people who receive deferred action, not amnesty or anything else. can you recall any legal authority for that? is that a break in tradition? >> so, absolutely not. again, the president has not created any new laws. the deferred action as you mentioned yourself, congressman, has existed -- deferred action has existed for decades on the books. in fact the regulations, the immigration regulations section 8 c -- 274, 8.12 specifically

say -- lists out who is eligible for work authorization and subsection c 14 explicitly says that i will just quote, an alien who has been granted deferred action act of administration convenience to the government which gives some cases lower priority if the alien establishes an economic necessity for employment is eligible for work authorization. so this is, again, this is existing regulations on the books for many years prior to the obama administration. there's nothing new in what the president has done. >> uh-huh. now, turning to chief counsel sekulow. can you tell me what new statute presidents george h.w. bush and clinton were implements when they granted deferred, and forced departure and employment authorization to hundreds of thousands of salvadorans,

haitians, liberians after congress chose not to extend their temporary protected status. >> mr. congressman, the supreme court recognized when it comes to matters of foreign concern, national security there are issues where they have allowed deferred action. however, i want to say what i reiterate what i said at the hearing in my testimony. i don't believe and i still believe actually, that the actions of president bush and president reagan as president's obama's are constitutional suspect. the fact that you have a 30 or 40-year history doesn't get better with time. so i don't find -- i think it's important to point out that this is not -- this is the enforcement-free zone creation here. this is different from those cases. >> okay. i get your drift. let me ask you about whether

this goes to you mr. dupree as well. can you tell me what new statute george h.w. bush was implements when he granted deferred enforcement departure and employment authorization to approximately 80,000 chinese nationals after the tiananmen square massacre. >> mr. conyers, the first president bush i think was doing two things in his grants of immigration relief. one, is he was following on certain actions taken by his predecessor, president reagan in

interpreting the immigration and reform control act of 1986. i think that both presidents reagan and president bush were faithfully implementing the will of congress in issuing regulations pursuant to icra. with with regard to particular grants either of chinese nationals, tiananmen square, as mr. sekulow said that is well recognized authority that when you have a foreign crisis, often one that generates a large number of refugees, the president owing to his duties under the constitution to engage in foreign affairs and oversees the foreign relations often will grant temporary protected status from person from affected nations. >> well, the answer in both these instances were none, but i appreciate your interpretation. my time is exhausted and i thank the chairman. >> thanks. recognize the gentleman from north carolina for five minutes. >> thank you, mr. chairman.

good to have you all with us today. mr. rotunda, let me start with you. some defenders of the president's unilateral actions have asserted that his actions were merely an exercise of prosecutorial discretion. are these assertions correct or is there indeed a fundamental difference between prosecutorial discretion and many of the president's unilateral actions? >> the short answer, if i can be short, is prosecutorial discretion the cases refer to criminal prosecutions. refusal to not prosecute somebody who enters the united states fraunlly in violation of criminal laws. the office of legal counsel said 1990 opinion it says the president's powers do not permit the president to which statues to enforce. it says obviously the president cannot refuse to enforce a statute he opposes for mere

policy reasons. they don't site it. and there's a whole series of other ones where they don't site it. we know the -- in gal vin, the supreme court said congress is the authority on immigration matters, not the president. and president implements the law. you would think that the olc opinion would try to distinguish that. they ignore it. >> thank you. mr. sekulow. let me bring one of the president bushs into the hearing room here. president h.w. bush proposed that congress should lower the tax on capital gains, you may recall. congress did not enact his proposal. under president obama's assertion of executive power could president bush simply have ignored or instructed the irs not to enforce the tax code on capital gains greater than 10%? >> if president bush would have done that, he would have been exercising an unconstitutional policy that he would be implementing. it would not be legal and it

would be unlawful. having said that, i think it's a great analogy so what's happened here. i keep going back to this, but the truth of the matter is the president -- you could play the 22 times the president said i'm not a king and i have to work with congress. but the president of the united states -- i want to read this because it addresses this -- >> if you will, i have one more question. go ahead. >> very quickly. the president said, i just took an action to change the law. and as i keep saying, no one on this committee can possibly believe that the president has that authority. he just doesn't. you couldn't do it for taxes. taxes. you can't do it for immigration. >> thank you, sir. mr. dupree and madame, let me nut question jointly to you. i've been advised there's approximately 5 million that have waited in line, complied with the law who may fall victims of double standards. is my concern justified? >> i think it is. fear and i feel badly for people

who have been waiting in line, waiting their turn and now unfortunately may be penalized and that they're moved farther back in the line precisely because they had the bad judgment to respect our laws and play by the rules. >> and is 5 million an accurate account? >> that sounds right to me. i don't profess to have personal knowledge of that, but that sounds right. >> madame, do you want to be heard over that question? >> sure. i completely agree that there is a need for -- to address the backlog, the visa backlog and frankly this is where congress needs to act and pass immigration reform so families can be reunited. however, we do have 11 million people in this country and what the president has done has said individuals who are parents of u.s. citizens lawful residents are low-level priority. however, he will continue enforcing the law based on the appropriations you have provided. so there's no abdue indication of his authority. let's remember, only about four or five million people are

estimated to benefit from this deferred action program and other changes. there are another 6-million plus individuals who will be subject to deportation and attention under the appropriations that the congress has allocated. >> thank you. mr. sekulow -- >> yes, sir. >> i cut you off earlier. we have a few moments. you want to reclaim your time? >> yes, sir, if i may. it's in response to my colleague. here is the problem, under the president's plan, what lawyer would recommend to their client who is an unlawful immigrant in the united states that even fit under this plan, what lawyer would recommend that their client register for this? knowing that to be constitutional olc said you have to have absolute discretion and that the president on his own can cut this program off at a moment's notice. now you disclosed yourself publicly, you may have come out of the shadows, but the light at this point will be so bright you could end up in a situation worse than you were to begin with. >> thank you. the red light is about to

illuminate. thank you all again. >> would the gentleman yield -- from north carolina yield to the chair? >> i'll be pleased to. >> i thank the gentleman. and with that objection, he is recognized for additional 30 seconds. i want to make one important point here. ms. hanicapie, the president is same time he signed the executive order that made it clear that those 5 million would be entitled to a legal administrative legal status also changed other rules that made it clear that the vast majority of the remaining 6 million who are already here will not be subject to action to deport them because -- >> would the gentleman yield? >> i will recognize him 30 seconds. >> i have the time and i will yield. >> i would just note that it is indeed correct that the other 6 million have fallen into the new categories. however, we have 11 million

undocumented individuals congress only appropriates sufficient funds to remove 400,000 a year. surely the chairman is not suggesting that there should be no policy on who should come first of the 400,000 of the 11 million and i yield back. >> well, reclaiming the time. i don't want to penalize those who have complied with the law. that's the direction for which i was coming. reclaiming yield back. >> the chair recognizes the gentleman from new york for five minutes. >> thank you. thank you, mr. chairman. i'm glad that this is not a hearing on the policy because if it were a hearing on the policy i would point out that in the last congress, this committee reported -- voted for four immigration bills none of which had report language or wentçó t the floor. so that's how active this committee has been in -- or the house has been in trying to deal

with the policy problem which everybody agrees with. but let me ask a few very specific legal questions about the president's power. first of all p professor rotunda. you quoted heckler very sus chainny. an agency decision not to prosecute or enforce whether through civil or criminal process is a decision generally committed to an agency's absolute discretion. you distinguished chainny that it focussed on standing and by saying that the law on standing has asloued significantly since that time. the decision actually had nothing to do with standing. the case involved a lawsuit against the fda brought by prisoners who were due to be executed by legal injection. they banned these particular drugs for execution after the fda denied them. the most conservative judge

would find standing lacking in that decision. the case does stand for the proposition that the agency's decision to prosecute or enforce is at its discretion. can't hear you, sir. >> please look at 470 u.s. page 831 the text at note 4 as well as note 4, note 4 the court says, we don't have a situation where could justifiably be found that the agency has consciously and express lid adopted a general policy that is so extreme to amount to abdue indication of responsibilities. it sites a d.c. case in 1973 which found standing and ordered the agency to act. now, i would have thought the olc since it relied on this case i think 20 times, would have pointed out why somehow that footnote was irrelevant to them. secondly, you're absolutely

right. does not use the word standing but talks about the court what it says in the praf before the text at footnote 4, is that generally the agency exercises coercive power over an individual. that's how the courts get standing. >> but generally the agency may exercise coercive power over an individual at its discretion. it doesn't have to exercise. >> the court says -- >> that's what the agency has to do. >> the court says text next to footnote 4, we exercise it unreviewable. the resumption may be rebutted when the substantive statutes provided guidelines for the agency to follow in exercising its enforcement power. >> okay. the court is saying that the agency has discretion and the -- its enforcement power and the statute gives it guidelines in how to exercise that discretion. >> it says that it's presumptively unreviewable.

but when it's exercising a power that has standing it can be reviewed. >> so it -- >> if i could just finish the sentence and if you fast forward to massachusetts v-epa where the state of massachusetts forced the epa to institute regulations on carbon dioxide pollution and global warming and the supreme court said -- >> excuse me. you're wrong on that, too. the holding of the court says we hold only that epa must ground its reasoning for action or inaction of the statute. unphoto. if the epa wishes to deny a rule making it needs to do so that -- but it is its decision. all that is saying it can't be arbitrated or capri shous. >> they wouldn't say it would be presumptively unreviewable. >> all right. >> the court reviewed -- >> the court said that the epa had that discretion. let me ask you a different question, though. the statute very clearly says that certain individuals shall

upon the order of the attorney general be removed. that would seem the key words upon the order of the attorney general would seem to indicate that the executive branch official has discretion to decide whether those undocumented immigrants be deported or not. >> you're dealing with a complex statute and you're taking out a phrase. >> excuse me, you're dealing with a lot of complicated court decisions and taking out phrases. >> i'm dealing with holding. when i quote from the olc, the prior cases where the olc says the president doesn't have the discretion to refuse to enforce laws he disagrees with as a matter of policy, maybe there's a way to distinguish that. but a good legal opinion would have done that, would have mentioned these cases. >> let me read to you from the case of arizona versus u.s. probably the most recent and probably the most relevant case. in arizona the supreme court said -- the supreme court said relied upon the broad discretion

exercised by federal immigration officials. let me read you from the decision. congress specified which ail kbrens may be removed from the eyes and the procedures for doing so. may be. aliens may be remove if they were inadmissible, convicted of certain crimes of removal civil not a criminal matter. a principle feature of the removal system is the broad discretion exercised by immigration officials. federal officials as an initial matter must decide whether it makes sense to pursue removal at all. closed quote. qed, end of discussion. >> i wonder why the president for six years thought -- >> i'm not interested. excuse me. i asked you about the supreme court ruling. the president may have been mistaken and may not have studied the point. that's not the point. the point is supreme court has told us that federal officials as an initial matter must decide whether it makes sense to pursue removal at all. a principle feature of the removal system is to broad diskegs exercised by immigration

officials. that would seem right there to justify almost any discretionary feature that isn't -- any digs cession nar program that isn't arbitrary and ka pri shous. >> the gentleman expired. >> i would have thought the olc would have at some point read the decision and tell the president for the last six years you've been wrong. >> but you didn't answer what the supreme court just said here. >> time of the gentleman has expired. >> i wish i could. >> chair recognized himself for his questions and will give the gentleman, mr. rotunda an additional few second to respond again to that. >> gal vin v press page 531 of volume 347 the court said in enforcement i'm quoting now the executive government branch of the government must respect the procedural safeguards of due process but the formulation of these policies is entrusted

exclusively to congress. that has become about in firmly embedded in our body of politics as any aspect of our government. maybe you can distinguish that, too. >> let me butt tres your argument here. in arizona versus u.s. the supreme court said discretion in the enforcement of immigration law embraces immediate human concerns unauthorized workers trying to support their families for example, likely pose less danger than alien smugglers or aliens who commit a serious crime, but it goesds on to say, the equities of an individual case may turn on many factors, including whether the alien has children born in the kbriets, long ties to the community et cetera, et cetera. so the issue here really is what is the meaning of prosecutorial discretion. has the president abused that? a blanket way to 5 million people or does -- >> mr. chairman? >> to make a 30-second comment on what you just said. >> i am not going to yield to you. i'm going to ask my questions of the gentlemen.

>> the president has dispensed the law, suspended the law until he says otherwise. that is not what you normally think of as prosecutorial discretion, typically involves suspensions of criminal law, not the immigration laws, at least the civil aspects of immigration. >> and president obama sites an opinion of the justice department's office of legal council to justify his executive legalization of millions of unlawful aliens. isn't it true that the legal counsel doesn't have a particularly great track record when it comes to questions of executive power. the obama administration in 2012 touted an olc opinion justifying the president's controversial recess appointments. didn't the supreme court rule those appointments were constitutional in a unanimous 9-0 ruling. >> he lost 9-0. >> the justice department office of legal counsel states that the sail yen feature of class-based

affirmative application process with threshold eligibility criteria does not in and of itself cross the line between executing the law and rewriting it. this is because each program has also left room for case by case determinations giving immigration officials discretion to deny applications even if the applicant fulfills all of the program criteria. this feature of the proposed programming ensures that it does not create a category kal entitlement to deferred action that could raise concerns that dhs is either imper misbli attempting to rewrite or categorically declining to enforce the law with respect to a particular group of undocumented aliens. however, in president obama's deferred action for childhood arrivals dock a program executive came to the u.s. as minors the promise of discretion for adjudicators is mere pretense. in reality, dhs has admitted to the judiciary committee, that if

an alien applies, they will refer deferred action. if applicants fulfill the criteria. thus by the office of legal council's own admission, the president's dock a program is constitutional suspect. the rules -- >> mr. chairman -- >> are you using your own time? >> i'm using my own time. >> i'm glad that you announced that. thank you very much. >> the rules of the game will most assuredly be the same for president obama's latest executive thus isn't it true that the olc would also clearly find the president's latest constitutional suspect? mr. sekulow? >> here is the situation. when you read the olc memorandum and the justification for the case by case individual analysis, it goes on to state -- i wish some of the people that were protesting would stay for the rest of this and see if they like this deal so well the deal the president put forward because as he says, as we previously noted deferred action

conferred no lawful immigration status, provides no path to lawful citizenship and is revocable at any time in the agency's discretion. that is markedly different than what the president told the 4 million people to come out of the shadows from what he told him and olc said he could do. on the individual case by case determination and ewe look at in the context of reality, there is no way that it can be handled on a case by case basis so it's either a blanket exemption across the board or it's nod. >> mr. dupree, do you want to add? >> i agree. the case by case analysis is window dressing. this policy is plainly unconstitutional. >> it's a blanket coverage. >> uh-huh. >> the chair recognizes the gentleman from virginia, mr. scott, for his questions. >> thank you mr. chairman. we put an end to this debate by passing some kind of reform.

apparently many on both sides of the aisle agree with the policy and so instead of arguing process, let's get on with comprehensive immigration reform. but in the meanwhile, it's been acknowledged 11 million people are potentially subject now to deportation. congress has spoken and has not appropriated anywhere close to enough money to deport everyone as my colleague from california has said. and so ms. hanicapie, we have to establish some policy as to priority. what's wrong with the policies articulated by the president? >> so there's nothing wrong with the policies announced by president, in fact, they are based on congress's will over the years to say that we should respect family unity. and that the fact that the administration has decided to focus on the parents of u.s. citizens and lawful permanent residents is good policy and the administration gets to decide,

they have that executive discretion to decide who is a low-level priority so that they then can use and follow the law the appropriations that have been provided by congress to focus on serious criminal individuals who pose national security threats, et cetera. >> thank you. mr. sekulow, where the states have marijuana, they're not going to prosecute any low-level marijuana cases, would that be constitutional? >> i think that supremacy clause if there's a federal law on marijuana use the state can't override it. >> that's right. absolutely right. can the -- if the president says not with standing that reality, they're not going to prosecute cases, would that be constitutional? >> on a case by case basis, utilizing prosecutorial discretion, he could do that. what he could not say is say we're not longer going to enforce the drug laws in the united states or even particularly the marijuana laws in the united states. that individual case by case

determination is critical, but it's in this memo because it was the only way to justify the president's actions. >> so it would not be constitutional to not prosecute in those states? >> if the president were to determine as a matter of executive action that he was not going to enforce the laws against utilization of marijuana as a criminal act, i believe that that would not be within his authority. >> in those -- >> in those states. saying on an individual basis he wants to exercise discretion, he can do that on an individual basis. >> and if you disagree with that, then that's pretty much where we are on this debate? >> pretty much. >> okay. now, the family fairness program i understand that president bush covered about 42% of the undocumented population, the obama administration -- this executive order covers about

35%. if -- can you explain, mr. sekulow, how president reagan, clinton and bush, can you remind us how they can do something but all of a sudden president obama can't do essentially the same thing? >> as i said in the written testimony, congressman scott and as i said in my opening statement, i don't believe that president bush, president clinton, president bush, president obama have the constitutional authority to do what they did. and the fact that it's been done for four administrations and other 25 or 30 years, as i said, constitutional violations don't get better with time. i mean, some have argued there's statutory distensions at play here. i don't take that position. i take the position that if you look at it just constitutionally, was there a constitutional basis upon which those actions were taken? frankly, i don't see it. i'm sympathetic to what they were doing. i don't see it to be done that way. and the percentages should make -- constitutionality is not determined by the percentage of

violation. if there's a violation of 1%, it's as bad as a violation of 99. >> is there any constitutional legal distinction from a general deferment and a country specific action? >> yes, because the president's inherent and the supreme court recognized this inherent ability to deal with matters of foreign affairs and national affairs of the country. >> and if there is a violation who has standing to complain? >> the great question. the standing question. you know, i think some of the states are going to try to have standing in this particular case. standing is always difficult in these kind of challenges. >> if the president had just done it without talking about it, what would be the result there? >> he would have been found out. you can't do it to 4 million people. and i'll be -- again, brutally honest here as someone who is in favor of comprehensive immigration reform, as a lawyer, i would not recommend my client take a deal where their status

is revocable at any time at the agency's discretion. maybe he would have i question how many people are actually going to take part in this. >> thank you, mr. chairman. >> thank you, gentlemen. chair recognizes the man from alabama for five minutes. >> thank you. i think maybe listening to everyone on the panel, i think -- and most of the members on the die yas, we all agree that our country, its citizens and even our immigrants need comprehensive immigration reform. and mr. dupree said you've been frustrated for years over our inaction. so let's agree on that just for purposes of argument. does that make what the president did constitutional if it's unconstitutional? >> well, in my view congressman, no, it would not. to congressman scott's point. i think it's hurt the debate. as you see here and you hear, there's a lot of agreement of

the need for constitutional -- a constitutional path, a legal path of immigration reform. look, when i held my grandfather's natchization papers up, it means a lot. i'm the grandson of that russian immigrant, i get it. but the process has to be right. and i think unfortunately the president's action, which i still think is not only constitutional suspect but dangerous for the potential client, i don't think that advanced the debate because we're talking about as congressman scott said, we're talking about this instead of getting real comprehensive immigration reform through which would include border security. >> and i think, you know, i know mr. sensen brener said we're here to figure out why he did what he did. i don't think that's helpful at all. i mean, we could -- we would probably come up with a hundred different variations. i don't think that's material. it's whether it's constitutional or unconstitutional. i think we go back to this little book here, how our laws

are made. i mean, you know, fifth grade. and i want to introduce this. >> without objection, it will be made a part of the record. >> and then we back that up with not only section 1 of article 1, but section 8, which actually says to establish uniform rules of naturalization and it didn't give it to the president. clearly and simply gave it to the congress. now, some of us must disagree with that, but it's the constitution. >> just a brief comment. justice jackson said that president's power is at its lowest when he's acting contrary to the express or implied will of congress. the implied will of congress if not the express is not to act in this area, at least not yet. his power should be at the

lowest. justice jackson or justice frank fort in that opinion also said that we're not dealing with a situation where there is a temporary emergency and the president is acting until he can persuade congress to act that ends on its own. >> thank you. >> neither one of those statements was discussed in the olc opinion. >> let me say this. you know, the question has been asked and i think it's answered in the question. can the president create, amend, suspend or ignore an act of congress? i think the answer is right there, an act of congress. >> i would also point out -- >> and the answer is no. >> one of the many grievances was the king's propensity to suspend or disregard the lawful enactments of parliament. and so it really goes back to the very foundations of our country -- >> why? >> in fact, i think it was mr. scott who referred to, let's

discuss policy rather than process. but the point is process matters. it mattered to our founders and should matter -- >> let me tell you why it ought to matter to those who are in our country without legal status. many of them came here because there was no rule of law in their country. and they came here because we have rule of law. and to come or even for us to allow them to come and start with a violation of rule of law, actually degrades not only our citizens but those who are here, who we all -- the protection of our laws, whether you agree or disagree with it is -- or for everyone's benefit and they are, our liberty, liberty, liberty. that's what they talked about when they wrote these things.

and this is a loss of liberty. and it just doesn't matter why the president did this or his motivation or whether we think it's reasonable. it's not -- it violates the rule of law. does anyone disagree with that. >> i respectfully disagree, congressman bachus. i think we're going back and forth between is the president following the constitution and -- >> well, let me ask you this -- >> gentleman's time has expired. he can state his question very quickly and you can respond very quickly. >> does the president have the right to create an act of congress to amend an act of congress or to suspend an act of congress or to ignore an act of congress? and, you know, this is 50 pages. >> that's the question. >> absolutely not and that is not what the president is doing here. the president is continuing to follow the act of congress by enforcing and using the appropriations for 400,000

deportations a year and secondly exercise prosecutorial discretion. >> he is not providing any legal status to individuals, simply temporary reprieve from deportation. there is no legal status that is being conferred. >> the committee is advised that we have three votes on the floor and we will stand in recess and we will reconvene immediately after those votes. it's my understanding that mr. rotunda has some concerns with the flight delay -- or a flight that he doesn't want to miss and the committee will certainly work with him to accommodate that. if you can stay as long as possible, great. but if you need to leave during this vote period, which is going to last at least a half an we understand. and committee will stand in recess.

okay. we're going to call this hearing back to order. thank you for waiting. i apologize. i don't think we'll have anymore interruptions and the chair now recognizes congresswoman from california. >> well, thank you very much, mr. chairman. and i'm glad that the -- obviously the last votes of the hour have grem. >> thank you. it resulted in a much smaller after the votes. we will not be here that much longer. i want to make a couple of comments. since all of this is submitted to the record under oath, i want to make a correction i'm sure was inned a ver sent. mr. seculo, in your written testimony page five-foot note 22, you assert that there was a provision that allowed for -- in the statute, that allowed for

humanitarian relief for a family member. i read that and i thought, did i get this wrong. i went and reread eriirka. it's incorrect. the statute -- let me read what the committee said when they passed the vote. this is the committee report. it is the intent of the committee that the families of legalized aliens will retain no special petition right by legislation and required to wait in line as the family members of other new resident aliens. the provision you referenced in the footnote relates to humanitarian waiver but only for those individuals, if you look at 8 u.s. code 1401, who are ineligible for other reasons. so it specifically does not

provide relief to individuals who were made intentionally ineligible for leave under the statute. i'm sure that was inadvertent. i would ask unanimous consent to put the public record into the record. in footnote 21 in your testimony you mentioned the crs report, about granting relief. i think it's important and i would ask unanimous consent to place into the record the congressional research service report that's referenced, that, according to the crs, was the first time or at least most notable time the grant of blanket extended voluntary departure was made for domestic policy considerations rather than a crisis in a foreign

national's homeland. i think that's an brand issue because i think you, sir, and also mr. despres have indicated prior grants of relief were related to the president's inherent foreign policy position and that clearly hasn't been the case for many decades. finally, i guess it's not finally because i don't want to be corrected by my colleague from california. i'm sorry mr. rotunda has had to leave because i did want to comment on a couple of the points that he made. he mentioned that the -- now, i've lost my notes here -- let me go to you jr, mr. despres. you mentioned in your written testimo testimony, a former head of the office of legal council under

president clinton. we researched who was that person. it turns out unless there were two individuals who made the exact same comment, that it was walter dellinger. it occurred to me, that although you're quoting him, mr. dellinger is one of the 10 legal scholars who's written to us saying that although they differ on the merits of immigration reform, they do not disagree on the power of the president and that they have reached the opinion the president's action most recently are completely lawful and consistent with governing law and with policies congress has expressed and statutes it has enacted. in fact, when he was making the take care clause comment, it was in reference to a request or opinion whether the constitution limits the authority of the

federal government to submit to binding arbitration and the olc opinion concluded there was no such constitutional prohibition. as the supreme court, in hector versus cheney, had indicated the faithful execution law does not necessarily entail acting against each technical violation of the statute. this case cited, really, has nothing to do, in my judgment, with the points that you are making, relative to the immigration matter. i am wondering, since we only provide sufficient funds to deport about 4% of the undocumented population a year and since the statute itself charges the homeland security secretary to establish national immigration enforcement policies and priorities, how would it lead you to a conclusion

establishing those priorities to fit within the funding made available would somehow be impermissible. >> mr. chairman, i ask unanimous consent that the gentle lady be granted two additional minutes. >> mr. despres? >> one minute. >> congresswoman, my view is that there is no question that the executive and the department of homeland security have the power to set enforcement priorities. in my view, it is inherent in the concept discretion and something that is committed by our congress to the executive. where i think president obama has gone awhy is number one, indicating he is going to abandon enforcement to a significant percentage of the

affected population and number two, this really goes beyond a mere statement of saying we are not going to remove you, this amounts to a determination that will enable potentially 5 million people to claim benefits by law. >> if i may, there are no benefits. i would like to thank -- we don't agree on the constitutional question. you do note that section 274 ah 3 of the immigration nationality act does -- >> the congresswoman's time has expired. >> may i ask unanimous consent to put some things in the record. >> yes. if you want to put documents in. >> i would ask unanimous consent to put the following statements into the record by the national hispanic christian leadership conference, the refugee service, emiss ski poll church, church world service, municipal employees, american federation of teachers, asian-american

pacific labor alliance, coalition of black trade unionists, economic policy institute, american communication workers. latin development and national education association, united auto workers, united food and commercial workers, united steel workers, asian-americans advancing justice, american civil liberties union. american immigration lawyer's association. appleseed, common cause, fair immigration movement. latino american working group. national council of lareau zoe, one america and we belong together along with 10 stories compiled united we dream. >> those will be entered into the record. the chair recognizes the congressman from california, mr. issa. >> thank you, mr. chairman.

you're familiar with youngstown versus ohio? >> yes. >> is there any question in any's mind whether or not the president is relying on his constitutional authority and not any statutory authority in this case. >> he believes he's relying on his constitutional authority. in youngstown steel i don't believe he meets that standard at all. it would be at the lowest ebb. >> presuming he does, not relying on consent of congress and work visas that exist he has only his constitutional authority. let me ask a series of questions and then i'll first ask it to you and the other witnesses. if the president decided to expand his current definition to include all persons with health issues, would there be any difference in that basis? if he decided, i'll go through a quick series. if he decided any person who had a means of support, any person

who had gainful employment, any person who had a life-threatening disease, any person who was un was unable to job in their home country, any person who in fact had been here more than five years period, wouldn't all of those arbitrary categories be just as binding and just as legitimate as the one that he has created in order to create roughly 5 million or almost half of all illegals becoming legal? >> if the president's constitutional analysis is correct that would be correct, mr. chairman. >> if we allow this authority to be left unchecked, the president could at any time pick any catego category, any group of people and allow them to stay here simply on the basis he created a list of requirements that if they met them he could stay. >> yes. under his theory at any time he

could change his mind the next day and say now you all have to leave. that's the problem. >> let's go into that. back in 2003 i authored the alien accountability act. that allowed for a six year hiatus in deportation of any individuals who came forward, voluntarily submitted themselves and stood up for a procedure in which they would only be guaranteed a temporary work permit if they could show they were gainfully employed and subject at the end of the six years if not renewed by some other work permit, to leave. the interesting thing about that, it looks a lot like the president's act. the difference, of course, is that it would have lasted for more than just a president's time. in this case, when the president's term expires, the next president can be just as arbitrary or even this president, as you said, can be just as arbitrary. the reason i couldn't get a single domestic co-sponsor including my dear friend how war

berman when he was hear, the interest groups from california all said they'll never sign up for this because in fact, they would come out of the shadows, expose themselves and at any time could be deported. from a practical standpoint, are there two truisms, one, if you can name this category as broadly as you do, can't you name any category. >> yes. >> and, two, if in fact you want people to come out and disclose themselves, on what basis would this lack of full force binding agreement for more than the whim of the president's next morning coffee, why would this cause people to actually come from the shadow? lastly, the gentle lady, i want to know if in fact if people don't come from the shadows under this act, has the president still given them complete immunity or is this contingent in any way whether or

not they turn themselves in. that's something the president hasn't said. if somebody hasn't signed up within the period he specified, would they then be subject to deportation. i'll get to you last. plea please, i know i gave you a lot of questions. the questions i have are broader than the answers the president gave. >> >> i would point to the administration's justification under the oil sea document they say the only way this is constitutional is it is revokable at any time. your proposal and legislation based on law if passed would be based on a statutory basis to respond a real situation. what the president has done. that's why i said, if i'm the lawyer representing some of these clients, i would be very hesitant to say come out of the shadows under the whim of what could be changed literally the next day. there is no guarantee whatsoever. this does not solve the serious problem we have in this country on immigration.

>> then probably the second question because my time is expired. >> quickly, please, because the congressman's time has expired. >> but i do have 1200 unanimous consent requests coming up, too. just kidding. please. >> to answer the question, congressman, if people don't come forward will they still be subject to deportation, correct? >> if somebody hasn't signed up under the president's plan, he's silent on the question of is homeland security simply going to ignore them or is it contingent upon signing up. the president implied it is contingent on them signing up i could find nothing in his order that says it was. >> if it's a parent of a u.s. citizen child and they for whatever reason they don't come forwa forward. >> like they're smart and know it could change nine months from now. >> they may be considered lower

level priority and maybe the agent in your district will decide this is a parent of a citizen, child, will not deport them. those discretionary decisions will be made on a day-by-day basis. >> in the case of doka, the discretion never sent any out, right? >> the gentleman's time has expired and now recognizes congressman jackson lee from texa texas. >> this morning, at another hearing on this topic i thank in this instance chairman and ranking member for an important discussion that is the responsibility of the united states congress. in that discussion, i think it is well clear that different opinions are to be presented. i also think it is important for the record, for many who are not members of this panel, to understand that when a particular party is in the

majority, it gives them the right to have the dominant opinion on the panel. the three persons arguing against executive order are only reflective of the opinion of the majority. they're not reflective of the broad base of legal thought across america. i represent to you that there are now 135 law professors and others of prominent law schools from harvard to columbia, to washington university, to individuals of law schools prominent who completely disagree with the remaining two members of the panel, which i hope gives us a basis for making an intelligent decision which really speaks to what all of us would like to do, is to have legislation passing co comprehensive immigration reform. but my dear friends who are there i thank for being here are not the final statement. they are a representative panel of the opposition. we have exactly one witness from

those of us who have a different perspective. i would like to quickly put into the record a statement from dr. sharon stanley ray, christian church disciples. i come from it from a humanitarian perspective. i think executive order is narrowly drawn. she said i come with hands full of faith statements like my own, dozens of faith communities repeatedly name values over people over politics, community safety over party strategies and humanitarian compassion for children of families above rancor and rhetoric. i ask for permission to put the entire statement in the record. >> done. >> executive orders are narrowly drawn. the executive order of the president at issue is clear on its face and therefore the example of my good friend from california about people who have different reasons for possibly coming out are clearly not in

the executive order. it lists the priorities according to terrorism, felons, multiple misdemeanor. it is written out very clearly. in this case, it clearly indicates that the people court has said discretion in the enforcement of immigration that crimes and factors. clearly what the president enousiated. although you are dynamic legal scholars and those who have kgoe to law school relish your cerebral abilities but you are wrong. it is based on emotions and law school opposition despite your prowess, i am not calling names here because we have a supreme court that says this is within its discretion. i have a question for mr.

dupree, quickly, if i can. if you would, ma'am, we've been hearing about stay under the covers, don't come out. that's frightening people. again, just putting people in a box. what is your thought about continually telling people that as a lawyer, i would advise my clients not to take advantage of this fine executive order. i quickly want to ask mr. dupree that he quoted from one of the counsel from bill clinton. i want to ask him who that counsel was and what was the approach of his citing that person. >> great. thank you for the question congresswoman and for your leadership on immigration for many years. the national immigration law center has been very involved in the implementation for child and deferred arrivals program. the new program announced by the president for accountability is similar and previously midst on

the same thing. as lawyers awe do advise what te risks are, the fact this is an individualized application someone will look at the application, look at the evidence, are you eligible for the criteria, do you meet that criteria and only at that point will the department of homeland security decides whether that person merits action and if the status quo is unacceptable, as i shared in my testimony. and parents, the mother who was here today was the first to come out of the shadows to make sure she's there for her daughter at the end of the day. they will take that risk even if a future administration ends this program. >> would you have mr. dupree answer my question. who are you citing from? >> walter dellinger's opinion to set defining arbitration. >> you are aware he has said

this executive order is consistent with governing law and policies congress has addressed in the statutes. >> yes. if i could address that. congresswoman, i like law professors, i have been known to associate with law professors. the day we choose to elevate the opinions of the law pro-ferses over the constitution is a day i fear for the republic. >> i doubt that that is the case. he was in the office of legal council and i imagine he had to read the constitution. we will disagree but not be disagreeable. i yield back. >> the chair recognizes congressman king. >> thank you, mr. chairman. i thank the witnesses for your participation to come back to this congress after our votes on the floor. i would first ask if each of you have read 33 page olc guiding document? is that true for each of the witnesses and let the record reference they nodded or affirmed yes to that. so i would take you back to a

time in my memory when then secretary of homeland security janet napolitano sat at that very table and we had a discussion about the lack of constitutionality of the morton memos and doka. and i promised her they would face litigation, and they have drug out, as we likely expected. i also found on that foundational document she referenced on an individual basis only seven times in a within within -- a 1 1/3 document and i see in this advice to the president that purports to rationalize how the president can conduct himself in a constitutional fashion, i put it through my word processor and used these phrases, case by case, discretion, individual, those three searches and i came up with 152 incidents of it in this 33 page document, which

caused me to think that i know they were preparing for the litigation in the morton memos that had seven mentions of individual basis in it, but i didn't realize how paranoid they were about the litigation that's bound to come in the 33 page document here of the olc, office of legal council. i'd like to put in the record the things i picked out of here. i didn't read the whole thing like y'all did but got through the first 30 pages i got through the advice that says no to the president, i wouldn't have followed it any longer, i guess i was right the 22 times i told the public i didn't have the authority to do this. one thing important is deferred action does not confer any lawful immigration status. another one, dhs' decision not to seek alien removal. that's just an underlying component. i continue, may apply for authorization to work in this

united states under certain circumstances, that being a discretionary decision of the executive branch of government, as i understand it. i skip to page 6, where this document says the executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preference. continuing. at agency's enforcement decision could be consonant with rather than contrary to the congressional policy underlying the statutes the agency is charged with administering. and further in the same paragraph page 6 when they take matters without implied consent of congress his matters are at the lowest ebb. and the executive cannot consciously or expressly adopt a general policy so extreme to amount to abdication of its statutory responsibilities. there's more. the first third of this is a

devastating article, if you're the president, trying to defend your action. i'd start first, and ask could you begin to explain to me what i'm missing as i read this olc document. >> no. the president's lawyers clearly advised him in their opinion to meet constitutional scrutiny, there would have to be individual case by case determination which is revokable at any time at the agency's discretion which is markedly different the deal the president offered when he gave his speech. >> on an individual basis only, would that be a class or group of 5 million people, perhaps? >> well, that's -- the reality is an individual determination on a case by case basis with 5 million people cannot happen. >> mr. dupree, would you care to comment? >> i shared your reading of that memo. that struck me as remarkable, the memo lays out several legal premises correct in my view, many are correct, the conclusion it draws from the premises is

profound profoundly flawed. the people there are extremely smart and in portions of the memo they accurately state the law but i think they completely misfired advising the president what he proposed was constitutional. it plainly is not. >> i did read the concluding paragraph. put that in the record in sum for reasons set forth above we conclude the dhs' proposed prioritization policy and deferred action program for parents of u.s. citizens and lawful permanent residents would be legally permissible. i would say that's inconsistent with the fist seven or eight pages but the proposed action program of doka recipients is not permissible. could it be they said the doka recipients came here due to no fault of their own so it has to be somebody else's fault, would that be the parents of the doka recipients? >> the time has expired.

>> could i have you answer the question, mr. chairman. >> i respectfully disagree with my colleagues to the right that it carefully lays out what the president's limitations are and clearly states the program the president has announced falls within those legal limits. the way the current doca program exists individualized immigrations. i have assisted those that put them together. >> could it be they're the ones at fault? >> his time has expired and documents entered into the record. the chair recognizes mr. cohen. >> could i ask unanimous consent to put two things in the record. >> go ahead. >> there's been a lot of discussion about authorities employment. i would like to put sections 273 ah 3 into the nationality act along with the regulation providing that those aliens who have deferred actions may receive work authorization in

the code. >> without objection, mr. cone, you're up. >> mr. chairman, could i ask unanimous consent to, instead of stopping this, we admit the entire immigration nationalization code into the record so we don't have to go into it piece-by-piece. it is flawed but it is law. >> thank you. >> let me ask you a question, ma'am. i believe you said that you believe the president's actions are lawful, is that correct? >> that is correct. >> it's because he has discretion, prosecutorial discretion. some people have asked that he had said in the past about some set of facts or laws that he didn't have this authority and he changed his opinion and you gave a reason for that. let me ask, was the -- i don't recall, i don't know anybody here does, what are the facts

upon which the president said he didn't have the authority were they the same limited situation he has going now doing deferred prosecution? were there other responses to people that wanted a fast track to citizenship and other things that are not part of this program? >> that's a very good question, congressman. what the president was responding to was basically demands from the immigrants rights community and grassroots organizations and immigrants themselves to stop all deportations. that was a consistent demand he often said, no, i cannot do that. the second piece i tried to explain in my testimony earlier, the context, the timing of when the president was making those comments was always because he was specifically focused to getting immigration reform done through legislation. i should share on march 14th earlier this year i sat across from the president and specifically talked to him about the need for him to legalize his authority. he said i'm there and need to

focus on immigration reform and all you immigration advocates need to focus on immigration authority. he disagreed of the status, doca or workers who have been here five years that meet certain criteria should be eligible. this administration has decided, by consulting legal councsel to take a more conservative approach what discretion they're willing to take on and also have set forth the specific enforcement priorities. >> and mr. sakulo, you agreed -- first, let me finish up, the foundation the president acted you believe was constitutional is the same foundation president r reagan and george herbert walker bush acted on? >> absolutely. they have all including presidents reagan and president bush senior used prosecutorial discretion to provide -- at the

time it was voluntary departure. here, it's the same thing, a different type of prosecutorial discretion and different type of deferred action. >> mr. saqlo, you said you agreed and maybe differed a little bit, you threw in reagan and president bush the second they were wrong and four wrongs don't make a right. >> presidential violations don't get better with time. i don't see an underlying statutory bigasis -- you can be sympathetic what the president is trying to do. >> let me ask you this. i know you're not a politician, why is it all the other four instances nobody came out and questioned the president's authority from either side and nobody came out and filed a lawsuit and nobody suggested a possibility of impeaching presidents bush, reagan,

clinton, they did get to clinton for whatever else and then bush? what's the difference? why does this president get it different from all other presidents? >> i think you answered it, the political element to it the shear numbers and scope what we're dealing with. you're dealing with 5 million people. when you asked the question i think was a good one was the president talking about deportation or something else, let me read you the exact quote. he was at a speech, had hecklers much like we saw today concerned about this and they were saying stop the deportations. the president said you're absolutely right there have been significant numbers of deportation. that's true. what you're not paying attention to is i just took an action to change the law. the president views even though the olc doesn't see that the president viewed it as stopping deportation. he said he took action to change the law. i don't think what any of these

presidents have done is moored in constitutional framework. >> do you believe -- you're not a politician either -- the reason the response to this has been so different under this president, do you believe because of the number or believe there's some other reason that makes this president different than all other presidents? >> i have to say this is different. he is the first african-american president. he is being attacked for a number of issues and historically every single president republican and democrat have used their prosecutorial discretion and executive authority. when bush senior exercised that prosecutial discretion, they, too, believed they would be covering about 40% of the undocumented population at the time and it was after congress expressly said that they were not going to cover the children and spouses of immigrants who were legalized under irka. the late senator chafee had one

that would have done what president bush decided to anyway. >> thank you. >> thank you, mr. chairman and thank all of you for being witnesses here today. mr. chairman, of all the relevant premises i think we could consider perhaps the most foundational would be to simply read the oath that president barack obama made when he laid his hand upon the lincoln bible almost six years ago. i do solemnly swear that i will faithfully execute the office of president of the united states. and will, to the best of my ability, preserve, protect and defend the constitution of the united states. mr. chairman, i believe the recent executive action by the preside president, on illegal immigration is categorically incompatible with that oath. i'm also convinced there are

very few things a president can do more dangerous to a republic such as ours. if american presidents in the future should consider these days precedent and consider themselves unconstrained to the constitution as a matter of routine, the rule of law in america will be no more. and so much of what so many men and women have died on dark battle fields to protected will be undone. these are not light issues, mr. chairman. so my first question to you, sir, justice of the supreme court, james wilson, once explained that the take care clause meant that the president has the quote authority not to make or alter or dispense with the laws, but to execute and act the laws which are established unquote. so, sir, do you believe the

president's recent actions come port with mr. wilson's conclusions and is the president refusing to adhere to the take care clause in the attempt to evade the will of congress? >> i think that's the fundamental question, not the policy issue whether good or bad as far as immigration reform. is the president's action moored in constitutional authority. my view is it does not. >> mr. dupree, let me ask you, you state in your testimony when president bush was unable to get comprehensive immigration reform through congress quote that he did not attempt to achieve through executive fiat what he could not achieve through the legislative process. we respected the system the framers established unquote, your testimony. do you believe this administration is respecting the constitution when it grants deferred action to a class of millions of unlawful immigrants? >> i do not, congressman, i do not think that the president's actions are consistent with the system that our framers

established. i would point out that one out that the irony the bush administration criticized were assertions of executive power, yet when it came to immigration, we held back. we did not act through executive fiat, we did not act through executive order but rather deferred to the congress, respected the congressional role under article i section 1 and article i section 8 which conferred the power to make immigration laws to this congress and we held back. >> let me ask you, if a president holds imself unconstrained to the constitution, what are the implications to a republic like ours? >> it could end up with lawlessness. the rel problem here, i said this in my testimony earlier on and in this submission under the president's lawyer's interpretation of this executive action the president could wake up tomorrow morning say you know

what that executive action i took two days ago i don't want to do this anymore and you now have these people apply for something that doesn't exist. that's part of the problem here. if you're not moored in the constitution the danger to the public is the separation of powers becoming meaningless which is a major -- our entire constitutional framework. >> mr. chairman, i guess i suggest to you the issue we're dealing with here in the central consideration is one of profound significance and if we allow the rule of law to be jettisoned, which it appears we may be on that road, then i'm afraid we would all owe great britain a pretty profound apology for that little unpleasantness we had with them a few centuries back. >> will the gentleman yield? >> i would yield. thank the gentleman. i started by acknowledging that there are differences of opinion but i really think we can work through this. i would only aso the gentleman,

executive order both to the gentleman here is limited by the president's tenure. it is temporary, the president knows that. i think that's a bogus argument. what we can do is we can pass, mr. franks, with you immigration law by this congress. i hope we can do that. with that i new zealand back. >> thank you, mr. chairman. >> the chair recognizes congressman johnson. >> thank you. it should serve no surprise to anybody in this room that the first hearing of this committee after our return from august break -- after our return from thanksgiving, we've had so many breaks i'm getting so confused about it, our very first hearing, we only have two more weeks to go and this is a messaging hearing as opposed to a substantive oversight hearing

of presidential action. this is just another example of the strategy that republicans have employed since the very moment that president obama was sworn into office and that is to obstruct everything that the president sets out to do. now, they won't give the president credit for being the deporter in chief. i mean, he has deported, under his administration more people than any president in history. do you think you would ever hear a republican give him praise for that? no. they will find something to obstruct that process. so it doesn't matter what it is, it's just, we're going to say no to it. so then you get a group of lawyers together. my wife is a lawyer, by the way.

i mean, we've been married for 34 years. we've been lawyers the whole time and, man, we sit down, whatever i say, she's going to take issue with from a legal perspecti perspective. any legal issue that we start discussing, she's automatically going to take the opposite side. she's going to argue it earnestly and convincingly. you three along with the fourth gentleman that was here, have done the same thing. i believe that you feel ernest about the topic here today. but i also know that you're lawyers and lawyers can argue either side of an issue and do so compellingly. so my hat is off to you because all three of you all are top notch lawyers, litigators and

that's what lawyers do. and lawyers also take abstract principle of the law and apply them to the facts a client will give to you and then you will give the client the options. you won't select the option for the client, you won't direct the client to do this, but you'll give the client a range of options and the client will decide for him or herself which option to take. then, if you want to retain that client because that client pays well you're going to go to court and argue for whatever position that client decided upon. you will do so very earnestly and you will do it convincingly. you may be fortunate enough to win the case. that's what lawyers do and that's what you all are doing.

that's what i used to do. i still do it when i argue with my wife, but this, ladies and gentlemen, is not a courtroom. this is a legislative chamber. and our power as a legislature comes out of article i of our constitution. so we're sitting here talking about article 2. there's not one thing that us legislators here with article i power can do about article 2 power other than to sue the president. we don't have to have this hearing to do that. we don't even have to have a hearing for the republicans to decide they're going to impeach the president or that we're going to file a lawsuit on him, or we're going to prosecute him. we don't need that. what this body is doing is

actually wasting time when we could be pass iing passing comp legislative reform just like the senate did almost two years ago, then we're refusing to do our obligation to the people they elected us to do. this is the most do nothingness congress in the history of mankind. we're doing nothing today other than what we've always done in this congress under republican leadership and that is to say no, obstruct the president. so i don't have any questions. i think each one of you all have argued your positions admirably. if i were the judge, i would be decide i deciding -- i would be deciding this case -- my ruling would go in favor of the minority. the underdog. >> >> the gentleman's time is

expired. the chairman recognizes congressman gowdy. >> i thank the gentleman. among the many limitations in life is my ability to claim other people's motives or read their minds. i could have response to a question you received from mr. cohen you suggested race was the basis we may have this constitutional basis. did i understand you correctly? >> i believe i was responding to the question about is there an explanation about why -- >> let me offer another explanation to you. not a single republican who is here right now ever served under a republican president, not one. so i hope i do live long enough to hold a republican president to the exact same standard that i am holding this one. but for you to run to race as the explanation for why we hold the position that we do, harry reid had a very different perspective on recess appointments when there was a texan in the white house and none of us accused him of

questi geographic discrimination. for that matter senator obama had a different perspective on overreach than president obama and nobody runs to race as an explanation for that. i would caution you to be careful when you try to import motives to people. with that, what are the limits of prosecutorial discretion? >> so among the limits of prosecutorial discretion is that the president must comply with existing statutes such as the appropriations. so the president can't simply stop deporting everybody and in fact what they've done here is listed new priorities -- >> so he can't stop deporting everybody. what are the limits? as long as he deports one person that's a proper exercise of prosecutorial discretion? >> no. under the current appropriations. >> i'm not talking about appropriations. i'm talking about the constitutional doctrine of prosecutorial discretion, which if you marry up with the pardon clause, you don't have to

enforce it and if they do break it you can pardon them for knit. >> under the constitutional doctrine, we should take two pieces. one is you've got the take care clause, which says that the president must take care to enforce the law. >> your answer is much more complex than my question. what are the limits of the doctrine of prosecutorial discretion? >> the limits are the president must enforce the laws based on statute. so one is -- >> i thought he just announced he wasn't going to do that, that he was carving out categories and exceptions. >> in addition- >> not on a case by case basis, too, entire categories. >> no. he's not stopping not saying he will stop enforcing the law vis-a-vis those individuals. he is creating a program individuals can come forward. if they meet certain criteria, they will be invited to apply, pay a fee, pass a background academic. >> that's not what the current

law. >> that is what is possible under deferred action and what he has developed. >> i want to talk to you a second about that background check. i want to get into the policy a little bit. can you tell me what a non-serious criminal is? because when i look at the white house talking points, they're interested in serious criminals. so tell me what a non-serious criminal is. >> it could include somebody for example who has been detained for shoplifting, let's say, i don't know, a 22-year-old who takes lipstick, that's a misdemeanor. >> so just misdemeanors, non-serious criminal refers to misdemeanor convictions? >> right. in fact there are certain misdemeanors considered serious criminals under the recent memos from the department of homeland security as well. >> how about domestic violence. how many domestic violence convictions can you have and still remain? >> i believe domestic violence i considered a serious crime

under. >> it wasn't under the comprehensive senate immigration bill i have heard lots and lots of my colleaguining embrace. i think you could have up to three and still pass. how about recidivist dui? >> i believe it -- >> a single du icon conviction even a misdemeanor? >> that's my belief. >> where could i go to whether or not that understanding is correct or not. it wasn't on the white house talking points. they talked about gang members. i'm not aware of a federal crime for being a member of a gang. i know it's a sentencing enhancement. is there a crime for being a member of a gang? >> that's concerns some advocates have if you live in a certain zip code and being associated. >> i understand your concern is it might catch too many people. my concern is the opposite, that it won't catch the right people. so it's not a crime to be a member of a gang. you have to commit another

underlying offense and then it's a sentence enhancement. how are you going to determine who the gang members are? >> there are gang databases that exist. >> if you're in a gang database will you be deported? >> we don't have enough information from the administration yes. this was just announced. >> i have the talking points gang members will be deported. >> talking points are not sufficient. they will administer guidelines. >> who is "they?" >> the white house and department of homeland security. >> thank you, mr. chairman. >> the chairman recognizes dr. chu. >> i want to embrace this claim the president reagan and bush only did a deferred cleanup on laws that is irca. isn't it true they considered whether spouses and children who obtained legal status should be granted special protection under the law and explicitly chose not

to do so and that both president reagan and bush chose to expand this law anyway, with deferred action and work authorization? >> yes, congresswoman. thank you for your leadership, particularly on the power act. yes. absolutely. the big difference between what presidents reagan and bush senior did versus what president obama has done, they exercised prosecutorial discretion. they're using existing statute to provide deferred action and allow people to get work authorization. however, both under irca, congress considered children and spouses who meet certain criteria would not be eligible and after it was passed the quote-unquote cleanup there were a number of amendments under different points, family fairness act that failed. one the cloture vote failed and secondly on october 7th of '87, the late senator chafee

introduced an amendment specifically to amend the immigration nationality to waive the continuous residency requirement of spouses and children and that also was defeated. despite those different attempts by congress, this was a republican senator, to address this issue, presidents reagan and bush senior decided this was unfair to deport the children and spouses of people legalized under irca and secondly they recognized they had legal authority to exercise that discretion and provide voluntary departure for those individuals and eventually work authorization as well. >> both president bush and reagan acted in contrast to congress, not in conjunction with congress? >> correct. they complete -- they acted against congressional will and exercised their legal authority which was well established and continues to be well established today. >> it has also been said repeatedly today this deferred

action is unfair because the beneficiaries would jump in line before millions of others who are waiting in line. why is this incorrect? >> unfortunately, again, this is incorrect because there is a lot of misinformation about what the deferred action program is. people are not gettington any path of citizenship and not becoming lawful permanent residents simply getting a temporary reprieve from deportation and will be able to work because the regulations allow them to get work authorization if they get deferred action. so we still have a need and as congressman johnson was just saying a few minutes ago there's a need for comprehensive immigration reform to address the needs of individuals who are waiting in line. nothing the president has done changes in any way that need for immigration reform. my understanding is hr 15 is still pending in congress, there is still a few weeks left in this session and i have been very comforted by many comments many people have made today about the need for comprehensive

immigration reform and i urge every one of you to use the remaining days in this session to pass hr 15. >> it's also been said repeatedly today this deferred action creates a class of individuals considered for deferral of deportation a blanket, that this is a blanket non-enforcement program. is this a blanket non-enforcement program? for instance with doca, have there been denials of the applications? can you tell me how many of them there have been? i've read it's 1,377 requests been denied. >> right. so, yes, this is not a blanket amnesty or program whatsoever. doca, the program in existence the last two years as well as the new program, is based on individual ajudications. individuals have to put forth the evidence they meet all the criteria. i must say to you,

representative chu, we have held large clinics for doca where representatives come with large reams of evidence everything from report cards, immunization records, certificate of the month letter, the school, they have come forward with a lot of evidence and that is why it has been a successful program because the majority of them have been able to meet the criteria required. that said there are also many who have been denied in fact most recently with the renewal program we have seen a rejection in applications of doca we continually raised to the administration to understand the reasons for those rejections. >> would the gentle lady yield? i'd like- -- >> the time has expired? >> i wanted to make a unanimous consent request. >> should we just do a blanket unanimous consent? please, go ahead. >> my friend, the chairman of the subcommittee had a number of questions about eligibility for

deferred action program specified in the memorandum of those priorities and those specified in that memo. since there were questions about that put this memo so people will understand who is eligible and not eligible. >> without objection. chair now recognizes congressman l labrador. >> thank you very much. i'd like to join my good friend from south carolina and advise you and all the members of this academy. i have a question for you. when the congress went after president clinton and -- were they racist when they were against his policies? >> i don't recall what you're -- not sure what you're referring to. in any time the congress

objected to president clinton's policies were they being racist? >> it's out of context but your point is well taken, both of your points. >> when president clinton was impeached was it because the members of congress were being racist? >> no. >> when the democrats file articles of impeachment against president bush, was it because they were being racist? >> no, congressman. >> it was because they disagreed with his policies, wasn't it? and they thought he has exceeded his authority as president of the united states and they thought he had committed impeachable offenses. i disagreed with them and that's why no one on this side has filed articles of impeachment against this president. >> yet. >> i just get -- i think you guys might. but i don't think any republican wants to do that. i think you might try to do it on the republican hands. no one's talking about impeachment or anything like that. we disagree with his policies

and disagree with everything he has done on immigration, but to assert here in a hearing in an open hearing under oath it might be racism why we're disagreeing with the president's policies i think is beyond the pale. now, let's talk about some of these facts that are happening here. you did not answer the question about what the president's -- the limits to the president's authority might be under deferred ajudication. are there any limits to his authority? >> the limits to his authority have to do with the statutory limitations. and so again -- >> you said he created a program. there is no statutory program that allows him to do this program. you said it in your own testimony that he created a program now we're using, according to you, on an individual liz individualized ajudication. congress has charged the executive branch and secondly the department of homeland

security. >> i understand that. when you will argue because it's that we don't have enough appropriations. if the homeland security department started deporting more people than they have funds for, can't they come to congress and ask for more money to start deporting people? >> yes. they could definitely do that. that was not the argument i was going to make. simply that under the homeland security act, the department of homeland security has identified priorities for who is considered a high level priority, who is a low level priority. 92 but they don't get to set those priorities. >> excuse me? >> they don't get to set those priorities. congress set those priorities for them. there is a certain class of people that are here unlawfully without documents and they should be deported. it's not the department of homeland security that gets to set those premises. >> so it's a combination of the two, congressman. so under 6 usc code section 202 subsection 5 the statute is very clear that the secretary of homeland security shall be responsible for the fooling

subsection 5 quote establishing national immigration enforcement policies and priorities. >> but those priorities are in memos, not in statutes, isn't that correct? >> the statute says the department gets to decide what those priorities are. secondly, as any any administrative agency, any executive agency gets to decide based on resource is, based on policy priority, based on what is considered good public policy, they determine a kbi nag of it's the same way -- >> so if i run for president and i decide i don't like any epa regulations. i don't like the epa and i don't want to enforce regulations. can i decide not to enforce epa rules? >> you could except the legal imitation would be if there is a statute that requires you, requires the epa, to enforce part of it. >> now if i decide i don't like tax laws, did i decide as president that i don't want to

enforce the tax laws? >> but again that is not, congressman with all due respect, that is not what this administration -- >> that is exactly what this administration was doing. i was an immigration lawyer. you can do an individualized adjudication and i had many of clients who i asked for adjudication for. there is a set of facts and usually it was because there was nothing in the law that allowed them to stay in the united states legally, correct? and i think you've done that as an immigration lawyer as well. but in the end you ask for an individualized adjudication, not for a whole class of people. you didn't just say, i want every one of my clients who lived in the united states for five years to have deferred adjudication. >> with all due respect, that again is not what administration is saying. the administration is saying there is accountability individuals who meet certain criter criterias -- >> there is no accountability.

>> the gentleman's time is expired. the chair now recognizes congressman deutsche. >> would you like to finish your answer? >> thank you, congressman. here are the low level priorities, this is a criteria, individuals still need to come forward individually and affirmatively and only at that point are they considered for affirmative action. there is no blanket. every mother and father come today and get a work document. >> thank you. >> we are discussion president obama's executive overreach but i fear that characterization makes light of what is a very sad reality that law enforcement agencies face everyday. which is there are limited resources. officials must pick and choose can crimes and which charges to pursue. every law enforcement agency from the fbi to your local police department chooses where to focus their resources. a state prosecutor makes choices. perhaps directing staff to focus

more on prosecuting do mestimes violence and less on marijuana. officials ask themselves, do we spend more on the banking sector or on medicare fraud? right on down to the most basic level of law enforcement everyday police officers exercise discretion when enforce ourg laws. they let some speeding drivers go with a warning, charge others with wreckless driving. there is no way for the department of homeland security to import more than 11 million undocumented immigrant in the united states. even if that is the goal of some in congress. mr. rotunda made is clear, democracies just don't have mass deportation. dhs has to prior ties. the fbi, cia, doj, state pros kierts, all the way down to city cops, how else can officials exercise their diskreg and prior

ties which of the approximately 11 million undocumented immigrants should be searched for, rounded up, detained and deported. it is clear that dhs should direct their limited resources toward reporting those undocumented immigrants who commit significant misdemeanors. this prioritization based on resources will insure that undocksmented immigrants who have a serious risk to our community will be deported while others who lived in our society for years, worked and contributed, can remain. i will give you a practical example. beatrice perez has lived in the united states for 22 years. they live in my home state of florida. she avoided going into her field here for fear of deportation. so she sold fishing nets. her children both qualified for delayed deportation status.

they are both american citizens. should the department of homeland security make this hardworking mother of children including two american children a pry for the deportation? i ask for you to submit a summary into the record. >> no objection. >> thank you. our nation's laws should be sure that resources are used in a fiscally prudent manner and unnecessarily takes people from their families and stows them in extremely expensive detention centers. here is the problem. for more than a decade, this congress required and the department of homeland security preparations bill that immigration and customs enforcement maintain and average day detention population. the average daily detention population increased over the years to 34,000 people.

it is an unprecedented restriction in law enforcement. congress requires that 34,000 are kept in detention facility. that's $5.5 million a day. crofting $ costing $159 per day. the detense ban mandate sun precedented. nowhere in this country. providing oois to fill beds based on need and not a number imposed in congress is consist wept best practices of law enforcement to satisfy the quota

oois officials are forced to find and remove undocumented in the families. even if they knows flight risk for immigration proceedings and many undocumented living in the u.s. for years. mr. chairman, as we go through the discussion, let's bear m mind that there are things we can do. i'm disheartened to talk about republicans to talk about their seemingly willingness to do so and it is so hard to have a vote. >> the gentleman's time has expired. >> chair recognizes mr. farn hope hoef. >> thank you. we have seen what happens when the administration telegraph what they are and aren't going to do with immigration laws.

that's a crisis on the southwest border. i'm south texas representative. i witnessed firsthand the problems caused by a bunch of children in some cases completely unaccompanied, in some cases with parents, crossing the border based on mistaken belief that if they got here they get to stay. we set the president's policies as date certain in there but these dates tend to slip and we are telegraphing that we really did not have a serious intent to enforce immigration laws. not only is this damaging to the balance of power between congress and white house, they also damage border is you chiropractority and open up to similar crisis in the future. i want to ask if you think this will cause people to cross the border illegally. >> no.

the deferred action only covers those who continuously reside in the united states for last -- >> didn't we under reagan say we were only going to grant illegal status to those folks that were here on a certain date and here we are doing something similar again? seems like we are wasting our time doing anything before the border is secure. mr. dupre, do you think we will see more people crossing the border as a reason to this policy. >> i think we will. the administration policy is followed closely outside the united states. i think there is also, as you alluded to, there has been a sense of mission creep. kind of a one-way ratchet in which the administration and republican as well as democrat administration say we will provide limited relief. guess which way that eventually goes.

>> it also frustrates me that president's action will make it more difficult for congress to make a path forward on both securing borders and dealing with immigration reform. we've got issues with high-tech workers, agriculture yal worker. it seems like the president is driving a wedge between the white house and congress in doing this. my understanding you worked with the bush administration on immigration reform. >> it is basically saying to congress, good riddance. i will make immigration law myself. it is you all are the ultimate judges but from my perspective

it is hard to see how this would enhance the likely hoofd cooperation from congress. >> and arguing for a very broad interpretation of prosecutorial intention. do you believe this broad of interpretation, does that leave us anything with take care clause or is this just an orphan clause in the constitution? that has no meaning if we take this broad of a mission? >> i think it is what the court and cheney said. when have you nonenforcement on such a broad-based scale that you are in essence not enforcing the existing law. i don't know what is so confusing about prosecutorial discretion. a lot of you have been prosecutors. >> i learned it in law school. you don't arrest somebody for speed together hospital. >> i was a tax lawyer and we would say, based own resources,

we won't try that particular case. >> my friend mr. labrador, i will yield the remainder of my time to him. >> were you working with the white house on june 6, 2007? >> yes i was. >> do you remember what happened in the senate when then senator obama decided to vote for poison pill limit that killed the entire immigration bill -- >> it was immensely frustrating. it was immensely frustrating for us for months and in some cases years. >> in fact president obama who was a senator had gone to the white house and looked at george w. bush and then he went to the senate floor and killed immigration reform. then promise eted the american

people that had congress house and senate with democratic hands and did absolutely nothing. this has always been a political issue for this president. it has never been a policy issue. thank you very much. >> thank you mr. chairman. the same way prosecutor yl discretion, i will set up here, thank you so much, i didn't have the good fortune of being able to go to law school. i never met thomas jefferson or madison or washington or franklin. sometimes they take us down memory line like they are your first cousins once removed. i admit to not having gone to law school. so i'm not as prepared as the gentleman may be on the questions of law. but i've worked harder than anyone here, at least as hard as

or harder than anyone here to work with republicans. they keep inviting me. it'll be next week, luis. here is our principles. then they say, just kidding, i didn't really mean it. they keep testeding us and teasing us about immigration reform. we're going to do it. we're just not ready right now. the fact is, the speaker called the united states in juchb this year. despite your efforts, we're not going to call the vote on immigration reform. let's just put aside the fallacy that this is disruptive to a system. it is almost as though you're coming here to tell us oh, you are on the pinnacle of success and had the president not acted we would all be con vined to do kpre helpsive immigration reform. the fact is, this is just not reality.