thank you for the consideration. good afternoon, this hearing of the judiciary committee will come to order. without objection, the committee has authorized us to take -- this morning's hearing on president obama's executive overreach on immigration. i'll begin by recognizing myself for an opening statement. i also want to point out to the members and to the audience in attendance today, you're all welcome to be here, but rule 11 of the house rules provides that the chairman of the committee may punish breaches of order and decorum by censure and exclusion from the hearing.

president obama has just announced one of the biggest congressional power grabs ever by a president. he has declared unilaterally that by his own estimation, almost 5 million unlawful immigrants will be free from the consequences of their lawless actions. not only that, he will in addition bestow on them work permits and other benefits. and president obama has stated over 20 times in the past that he does not have the constitutional power to take such steps on his own. and has repeatedly stated, i am not a king. we'll now ask for the video be rolled. >> the notion that i can just suspend deportations through executive order, that's just not the case.

because there are laws on the books that congress has passed, there are enough laws on to the books by congress that are very clear in terms of how we have to enforce our immigration system, that for me simply through executive order ignore those congressional mandates would not conform with my appropriate role as president. >> i can't solve this problem by myself. we're going have to have bipartisan support in order to make it happen. wire also a nation of laws, that's part of our tradition. and so the easy way out is to try to yell and pretend like i can do something by violating our laws. i can't simply ignores laws out there, i have to work to make them change. i have to bypass congress and change the law myself. but that's not how democracy

works. see, democracy is hard. but it's right. changing our laws means doing the hard work of changing minds and changing votes, one by one. sometimes when i talk to emigration advocates, they wish i could just bipass congress and change the law myself. but that's not how it works. i swore an oath to uphold to the laws on the book and i know some want me to bypass congress and do things on my own. believe me, the idea of doing things on my own is very tempting, i promise you, not just on immigration refortunately. -- reform. but that's not how ---that's not how our system works. that's-that's not how your

democracy functions, that's not how our constitution is written. >> the problem is that i'm the president of the united states, i'm not the emperor of the united states. my job is to execute laws that are passed. and congress right now has not changed what i consider to be a broken immigration system. and what that means is that we have certain obligations to enforce the laws that are in place, even if we think that in many cases the results may be tragic. >> we are a nation of immigrants, but we're also a nation of laws. so what i have said is, we need to fix a broken immigration system and i have done everything that i can on my own. what i have been able to do is make a legal argument that i think is absolutely right, which is that given the recourses that we have, we can't two everything

that congress has asked us to do. what we can do is then carve out the dream act folks, saying young people who have basically grown up here are americans that we should welcome, but if we start broadening that, then essentially i would be ignoring the law in a way that i think would be very difficult to defend legally. so that's not an option. >> as "the washington post's" own fact checker concluded, quote, apparently he's changed his mind. president obama admitted last week that i just took an action to change the law, end quote, and i should add a jeweled crown worthy of king james of england who dispensed with the revolution by dispensing laws passed by parliament. it is congress's duty to write our nation's laws and once they are enacted, it is the

president's responsibility to enforce them. article 2, section 3 of the constitution requires the president to take care that the law be faithfully executed. president obama wants a special pathway to citizenship for 11 million unlawful immigrants and without any assurance that our nation's immigration laws that will be enforced in the future and he's upset that america won't change his immigration laws to his liking. thus he has decided to act unconstitutionally under the guise of prosecutorial discretion. while presidents do have the power to exercise prosecutorial discretion, this power must be judiciously used. prosecutorial discretion is a powerful tool that must be used responsibly and that exercising prosecutorial discretion does

not less on the ins's commitment to enforce the immigration laws to the best of our ability. it is not an invitation to violate or ignore the law. even president obama's department of homeland security secretary jeh johnson has admitted to to the committee that there are limits to the power of prosecutorial discretion and that there comes a point when something amounts to a wholesale abandonment. the obama administration has crossed the line from any justifiable use of its authority to a clear violation of his constitutional responsibility to faithfully execute the laws. there is a difference between setting priorities, focusing more resources on those cases that seem more serious and setting enforcement free zones for millions of unlawful aliens.

by boldly proclaiming that there will be no possibility of removal for millions of unlawful aliens, president obama eliminates entirely any deterrent effect our immigration laws have. he states plainly that those laws can be ignored with impunity, such actions will encourage others to come here illegally, just like his action for childhood arrivals program encouraged tens of thousands of unaccompanied alien minors and families to make the dangerous trek to the united states. the president relies on a memo prepared by his justice department's office of legal counsel, to explain that those actions are constitutional. immigration's discretion in -- limits on enforcement discretion are both implicit in and

fundamental to the constitution reese allocation of governmental powers between the two governmental branches, the memo admits that the executive cannot under the guise of exercising enforcement discretion attempt to effectively rewrite the laws to match its effectiveness. in heckler versus cheney decision, as to amount to an are abdication of its responsibilities. . the memo is an indictment of president obama's actions. the president also mistakenly claims that his actions are nothing new. it is true that previous presidents of both parties have provided immigration relief to groups of aliens, sometimes themselves abusing the power of prosecutorial discretion, however, usually the actions were based on emergencies in foreign countries, thereby relying on the broad constitutional power given to a president to conduct foreign

affairs. for example chinese students were protected from deportation after the tian'anmen's square, and after the devastating earthquake of 2010. what about president george h.w. bush's family fairness policy which the white house cites to justify his power grab? size and scope matter and only about 80,000 aliens applied to that program. as to the white house's claim that it covered more than 1.5 million aliens. "the washington post" fact checker concluded that the 1.5 million figure is too fishy to be cited by either the white house or the media. indeed, the 100,000 estimate that the -- "the washington post" assigned the white house claims three pinocchios, in granting deferreded action to a

totally unpress defected number of aliens, president obama has clearly exceeded his constitutional authority. no president has so abused and misused the power of prosecutorial discretion as has president obama. by acting lawlessly and assuming legislative power, the obama administration is driving full speed ahead to a constitutional crisis, tilting the scalers of our three-branch government in his favor and threatening to unravel our system of checks and balances. president obama has entered the realm of rewriting the laws when he can't convince congress to change them to match his personal tastes. as law professor david rubenstein has written. the more broadly or generally a systematic policy applies, the more it takes on the hue of law. rather than working constructively with the new men and women americans elected to

represent them in congress, the president is making his relationship with congress increasingly toxic by unconstitutionally acting on his own. tragically, president obama's shortsighted actions have further set back congressional efforts to enact legislation to reform our broken immigration system. i look forward to today's hearing and the testimony of our imminent witnesses. now i yield to mr. conyers for his opening statement. >> thank you. ladies and gentlemen -- >> in the hearing room, members of the audience must behave in an orderly way or they will be removed from the audience immediately. [ inaudible ] >> remove the members of the audience from the hearing room.

[ inaudible ] >> stop deportation! >> stop deportation! [ cheering and applause ] >> the gentleman from michigan for the interruption, but he is now advised to proceed with his

opening statement without penalty for the delay. >> mr. chairman and members of the committee and those who have joined us here this afternoon in the house judiciary committee, i would respectfully disagree with a number of assertions by our chairman. president obama did not change the law, he acted within the law consistent with the constitution and past precedent. now i have not noticed that there were many constitutional law professors on the committee, and i am certain that when president obama decided two weeks ago to use his authority under existing law, to do what

he can to fix our broken immigration system, i could have not been more pleased. i defy any of my colleagues on this committee or anyone in congress to tell me our immigration system is not broken. we know that it is. but i am disappointed that this congress, like a number of them before it, has done nothing to fix the problem. republican leaders in the house won't allow us to vote on a bipartisan bill, s-744 that passed the senate last year, with 68 votes out of 100. this committee has marked up a series of bills each one of them les palatable than the next, but hasn't even reported them to the floor.

and so i would urge that you consider that the only bills that we have seen on the floor would have deported dreamers and the parents of united states children denied basic protections to children fleeing violence and persian accumulation. -- persecution, now faced with this congressional inaction, the president of the united states decided it was time to take action. the president's reforms will help to secure the border, focus our resources on deporting felons, not families. and require undocumented imp and require undocumented imp imigrants to pass a criminal

background check and pay for their fair share of taxes in order to register for temporary protection from deportation. now these actions will keep millions of families with united states citizen children from being torn apart. families led by hard working mothers and fathers. and finally, these actions are not only appropriate, but they are lawful. there's a great deal of information available, publicly to support the president. on november 20, 11 prominent legal scholars wrote a letter explaining the president's action at, quote, explaining that the president's actions are within the power of the executive branch and that they represent a lawful exercise of the president's authority. i ask unanimous consent to include that in the record.

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

and i ask unanimous consent that the letter from 135 investigative immigration professors be included in the record. >> without objection, it will be made a part of the record. >> thank you. as people who were once charged with providing legal counsel to the government on this precise question, they write that, quote, we have all studied the relevant legal parameters and wish to express our collective view that the president's actions are well within his legal authority, in quotation. and of course, the administration requested a formal opinion by the office of legal counsel and made the document public nearly two weeks

ago. and i ask unanimous consent to include in the record the office of legal counsel opinion. >> without objection, it will be made a part of the record. >> thank you, again. >> without objection, it will be made a part of the record. >> thank you, again. and of course the administration requested a formal opinion by the office of legal counsel and made this document public nearly two weeks ago. now i know that many members on the other side of the aisle are not pleased about the president's decision. we continue to hear calls for shutting down the government. some have even talked about censoring the president or suing the president. or even worse.

but it seems to me, ladies and gentlemen, that the majority now has a choice. they can do what we were elected to do. they can come to the table and work to pass a real immigration reform bill. they can hold a vote. and that is exactly what i am prepared to do today. i thank the chairman for his tolerance and i yield back any time that may be remaining. >> chair thanks the gentleman and now recognizes the gentleman from texas, mr. smith for his opening statement. >> thank you mr. chairman, i also want to thank the gentleman from south carolina for yielding me his time. [ inaudible ] >> i'm not agreeing with you. >> the committee is not in order. the capitol police will remove

the disruptive members of the audience immediately. >> i have been here 30 years, this isn't justice, man. 30 years. 30 years and y'all are passing a bill. >> my children were born in this country. [ inaudible ] please. give us the opportunity. [ inaudible ] >> you may leave now and the capitol police will escort you out as soon as they return.

>> the gentleman from texas is recognized. >> thank you mr. chairman. before he took office, president obama swore an oath to, quote--yet he is now taking

executive action to legalize millions of illegal immigrants, all on his own. contrary to constitution. this administration is undermining the separation of legislative and executive powers that our founders wrote into the constitution to prevent tierney, and president obama is violating the constitution which explicitly reserves immigration policy for congress. article 1, section 8 clause 4 of the constitution. that congress shall have the power to -- uniform rule of naturalization. the supreme court has long found that this provision of the constitution grants congress full power over immigration policy.

in addition by suspending the enforcement of our immigration laws against nearly half of the illegal immigrants in the united states, president obama is violating his duty under the conversation that the laws be faithfully executed. president obama further described the limitations placed on his role as president. he has explicitly stated many times as the chairman noted that he does not have the power to grant executive amnesty without the authorization of congress. for instance on march 28, 2011, he stated that, with respect to the notion that i can just suspend deportations through executive order, that's just not the case. because there are laws on the books that congress has passed. the executive branch's job is to enforce and implement those

laws. and congressional scholars agree, congressional law professor john hill of the indiana school of law writes that, quote, there is a word for the president's plan to issue an executive order granting residency status for over 5 million undocumented aliens now living in the u.s. unconstitutional. this is unquestionably law making. president obama has now apparently forgotten what any first year law student understands, that the president cannot make a law without the consent of both houses of congress. congressional law professor of the south texas college of law writes, it cannot be the rule of law that the president can create arbitrary criteria of

where the law will not apply and then exempt anyone who meets that criteria. this is a very broad type of policy against enforcement that is so extreme as to announce an abdictation of the president's authority. despite the heavy media bias in favor of amnesty, a recent nbc news "wall street journal" poll found that americans oppose his executive amnesty by 48% to 38%. the american people know the president's executive amnesty grants work permits to millions of illegal immigrants, which hurts many hard working americans who struggle to find full-time work and good paying jobs. the obama administration has placed the interests of illegal immigrants above the needs of many employed and unemployed

americans. this amounts to a declaration of war against american workers. the constitution is not a technicality, it is a document that is preserved our freedoms for more than two centuries. every american should be very concerned about president obama's violating the constitution and not enforcing the laws of our nation. chair thannings -- >> thank you, mr. chairman. when president obama spoke from the east wing of the white house two weeks ago about the steps he would take to improve our broken immigration system, he was responding to loud and sustained calls for action from people all over the country. he can't change the law, but he can take certain actions within the law. to the president recognized what we all know, the immigration system is badly broken. many families face the threat of separation from deportation every day.

skilled immigrants want to drive innovations and create jobs and opportunities here, but instead we erect barriers and make them go elsewhere to build their companies. i was thinking with my family at thanksgiving all we have to be grateful for, but i'm not grateful that the farm workers that put that food on our table are living in fear. i have worked across the aisle to enact sensible immigration reforms and we have come close several times. in 2006, the senate passed a by partisan bill, but the house republicans squandered the opportunity to close the deal and instead passed an enforcement only bill. last year, the senate again passed a bipartisan immigration reform bill that brought historic adversaries, the chamber and the afl-cio, growers

and farm workers, everyone together, with a 68 vote in the senate and again we did nothing with that opportunity here on the house side. in fact i was parol of our own group of eight here in the house where we tried to craft a bipartisan house bill and we did actually write a bill, but in the end, we were unable to move forward. so it was only in the face of congressional inaction that the president decided to do something. he recognized there are costs to doing nothing and he looked for opportunities that's permitted in current law to avoid some of the costs. there are many things the president can't do to fix our immigration system and nothing the president did alleviates congress from taking action. i think it's important to remember that the president announced reforms in many different parts of the immigration system, including a

new strategy to force enforcement on the southern border, a may raise for i.c.e person nell. i haven't heard anybody complaining about those efforts of the president. no, it's only about the families of american citizens shouldering. and this talk of executive overreach, really is about deporting, i think, the parents of u.s. citizen children and i think it's a darn shame. by this point, much has already been said about the legal authority going back to really, eisenhower in the 50s, every president has used similar or same authority in the immigration context. the authority stems from the president's constitutional duty to take care that the laws be faithfully executed. in heckler v cheney, the supreme court explained to the president that this does not -- in the supreme court of arizona vrz the

united states struck down the majority of arizona's immigration law, broad discretion exercised by federal immigration officials extend to, quote, whether it makes sense to pursue remol at all. in 1999 members of congress from both parties, including members who still serve on this committee, wrote to then attorney general janet reno and asked her to issue specific instructions to guide in the use of prosecutorial discretion and several years later, congress in the homeland security act specifically directed the director of homeland security to enact national immigration enforcement policies and priorities. that's precisely what secretary johnson has done. now to the family fairness program, which serves as an important historical precursor to the deferred action for

parental -- was announced at a 1987 hearing and it offered protection from deportation to certain spouses and children who were legalized in the 1986 act, when the program was expanded under george h.w. bush in 1990, the ins commissioner estimated that as many as 5 million people will be protected from deported. i heard the chairman's comment about pinocchio and "the washington post," but i would like to ask for unanimous consent to put into the record, first the decision memo that announced the family fairness policy, dated february 8, 1990 where the department estimates that the family fairness policy provides voluntary departure and employment authorization to potentially millions of individuals and the other document, also dated february 8, 1990, which indicates that the intention or expectation is that

greater than 1 million ineligible family members will file for the benefit. >> without objection, those documents will be made part of the record. >> now when then mission never mcnairry -- said it's vital that we enforce the law against illegal entry. the split families encourages violations of the law as they reunite. a strong enforcement strategy can also be a humane enforce independent strategy. it's no different than today. if there's one key difference between the family farngs program and the deferred action program announced by the president last month is that president reagan and bush offered protection to people who were knowingly and intentionally denied protection by congress when they passed the 1986 act. by contrast, the president is

now acting in the face of historic intransigents by house republicans who will if no actions taken by the end of this month have wasted two opportunities in eight years to advance immigration reform bills. the president's actions are lawful, they're also smart, because they will allow dhs to focus serious -- finally they are consistent with basic american values like accountability, family unity and compassion. i would note that hr 151 -- there's still time to take this bill to the floor for a vote. and i hope that republicans will do so. and finally, i just want to respond very briefly to the argument and the video that we saw of the president making

various comments about the limits of his authority. i guess if the president had stayed multiple times that five plus five equals 15, and then said five plus five equals ten. second the timing of the president's statements are important. all of those statements were made before march -- >> how many finallies can we have, we're going to run out of time here. >> the chair is giving some leniency because the chair's own opening statement was in excess of five minutes. >> i didn't know that but i am almost through, i will just note that those statements were made before the president asked the secretary of homeland security to do a complete review of what could be -- that resulted in his memorandums by the office of legal counsel, and finally as we will see throughout this hearing, the legal question isn't even a close one. the president has clear legal

authority to form removals when it's in the national interest. chief justice roberts reaffirmed that principle just two years ago, our immigration law has recognized this authority, past presidents have used this authority regularly, our president is doing so now and i for one am grateful that he is. and i yield back. >> the chair thanks the gentlewoman, without objection, additional opening statements will be made part of the record. we thank our witnesses for joining us today. if you would all please rise we will begin by swearing you in. do you and swear that the testimony you give will be the truth and nothing but the truth so help you god? all the witnesses responded in the affirmative.

the distinguished professor of jurs prus dense at chapman university. and the professor of law at the university of illinois. he is the co-author of the seven volume treatise on constitutional law, the author of modern constitutional law and he has co-authored the most widely used course book on legal ethics, problems and materials on professional responsibility. he achieved his ba from harvard university, where he was a member of the harvard law review. jay seculo, a distinguished professor of law at regent university, he has argued 12 case before the nation's highest court, including mcconnell versus fec where he ensured the constitutional rights of young people remain protected with a

unanimous decision guaranteeing that minors can participate in political campaigns. mr. seculo received his phd from regent university, with a dissertation on american legal history. he's an honors graduate from mercer law school, where he served on the mercer law review. mr. thomas h. dupre is a member of the firm's litigation department and it's appellate and constitutional law practice group. in 2013 and 2014, chambers and partners named mr. dupre one of the leading appellate lawyers in the united states. in 2014, mr. dupre argued and won by unanimous vote a landmark personal jurisdiction case in the supreme court. prior to joining gibson dunn, mr. dupre served as deputy attorney general in the department of justice, ultimately becoming the principal deputy assistant attorney general.

mary elena encapiea, detector of the national immigration law center, he is a public interest lawyer who specializes in advancing and protecting the lights of immigrant workers, particularly those who are undocumented. she has provided strategic assistance and training to thousands of social service providers, labor unions and community based organizations. she holds a jury ris doctorate degree from the school of law, served on the american bar association's commission on immigration and is currently a member of the board of directors of jobs with justice and

welcome.u.s. i welcome all of you, i would ask that each witness summarize his testimony in five minute ors less, your entire statement will be made part of the record. to help you stay within that time limit, there is a timing light on your table, when the light switches from green to yellow, you will have one minute to conclude your testimony. when the light turns red, that's it, time is up and it signals that you should signal your sentence and your statement. so thank you all, we will now provide first with mr. rotunda. >> thank you mr. chairman. i think it's important to explain i favor immigration of the united states. it american indians had strict immigration laws, perhaps we wouldn't be here. my parents did not know the language, but did not know the customs. they were strangers in a strange land. my mother told me years later, the first night in the united

states, though she was well past the age of toilet training, she had an accident, she was so excited to be heemplt my father was a spy for the americans, he was a good spy because he spoke italian like a native. when he was in his 90s, i remember taking him to the va doctor, and the doctor said, looking at the paper, so you're italian, my father said, no, american. you have to realize, he did not know who was president, he did not know what year it was. he did not know my name. though he knew i was a friend. but he knew he was an american. so i favor reform along the lines of the president, whether congress exercises the comprehensive immigration reform or goes one step at a time isn't important. the government tells us there's over 11 million undocumented aliens here, we're not going to march 11 million people south of the border. if democracies just don't have

mass deportations. but we also all have to agree we have to secure our borders. if a 15-year-old can cross our borders, an al qaeda agent can as well. the issue isn't whether -- whether it's congressional for the president to act unilaterally to write our immigration laws and change the status of almost 5 million americans, almost half of them are here without papers. the president's executive power does not give him the power to govern by decree, it does not give him power to suspend the law. if he can actually do this and get away with it, i guess future presidents can say they'll suspend more acts of the affordable care act. the president said in his --

repeatedly over the last several years, i think over 20 times, he it traited and reiterated, he does not have the power to do this, and then he did it. why? he says in his statement to the people, congress has failed. congress doesn't fail when it fails to enact a presidential proposal. if the constitution were a computer program, we would not say that the separation of powers is a bug, it's a feature of the program. the framers wanted to make it difficult to enact laws so we have to learn to compromise. the president won't get all that he wants. both sides of the aisle are going to have to compromise as well. article 2 provides that the presidential take care that the laws be faithfully executed.

this clause is not a general grant of powers, actually a limitation on powers. the president must execute the law faithfully, a whole series of the action of the -- has said this repeatedly, that the president cannot suspend the laws, that he has prosecutorial discretion for approximately acts, refuse to prosecute criminally but not civilly. deportation the supreme court has told us is civil not criminal. the president tells us this deal opportunity apply to anyone who comes recently. he says congress has failed and are we a nation that cruelly rips a child away from their parvelts arms. apparently we will accept this cruelty and rip children from their parents arms. they came here before the arbitrary date of january 1, 2012. why couldn't it be january 2, or december 31st? the new dhs policy reads an

awful lot, looks like a statute, it has six single spaces pages, it talks about provisos, benefits, an arbitrary date. it grants apparently for the newspapers, it said repeatedly that these people will now get social security cards. we don't know how social security cards have anything to do with prosecutorial discretion. the olc opinion offers a theory that it relyings on historical incident. and second reading a lot into a fi selected segments of the statute. case law is precedent, historical examples are not. in any event, others have already distinguished those the examples. they're not part of my -- about my theory, i'm not going to coupe indicate their efforts in any event. no other president has said he as acted because congress has failed and issued an immigration order. no other president has said that he's doing something that over the last several years has repeatedly said is unconstitutional. the president should at least

explain or the olc opinion should explain why that was wrong. if somebody decided for years that five and five is 11 and suddenly it comes out to 10, we would like to know why? on the road to damascus, he got hit by lightning? why did he change his mind? to the "new york times" said that obama directs congress to enact overall immigration. the olc opinion admits that a general policy of nonenforcement would addition close or exercise case by case discretion. >> regular order, mr. chairman. >> mr. rotunda, if you could summarize the remainder of your statement. it will all be part of the record. >> in my papers i cite about 10 olc opinions as well as supreme court opinions that say that the president does not have discretion to refuse to enforce civil law and to the olc opinion ignored all of that. they even ignored the statements and the important footnote in the heckler opinion, on which

they relied. thank you. >> thank you mr. rotunda, mr. secula, welcome back. al. >> on behalf of the american center for law and justice and over 75,000 of our members, thank you for allowing me to appear today. presidential authority is a task that must be engaged in with only one question. does the president's actions meet constitutional scrutiny? in this case, they do not. it is humbling for this grand song of a russian imgrarnlt to be speaking to you today. my father, his father came here in 1914. in 1929, he filed for citizenship, filed a petition for naturalization. two years later a united states district court judge in brooklyn new york, granted sam seculo american status. i'm the grand son of that russian imgrant. immigration law was complex for my grandfather in 1931 and it is still complex today. the constitution, however is not. our system of government is straight forward, congress writes the law, the president executes the law, the judiciary interprets the law, this is a separation of powers mandated by our constitution. the president does not make the law. now, with due respect, some of the statements that have been

made, the president has stated that he changed the law. and i don't believe there's anyone on this committee that believes the president has the authority to change the law. he was being heckled at an event, similar to what we experienced today. there's passions on the side of the issues. i understand and i think we all understand. i join the professor and believe in a pathway to citizenship. but i believe to do that through the legal process set forth in the constitution and the president doesn't get to change the law. he actually said that, though. that he changed the law. that was how he handled the question that was asked. he changed the law. presidents cannot change the law. he can't do so constitutionally.

he cannot do so under supreme court president and can't change the law to purport with his preferred public policy, much of which i share. the president's executive action really disrupts the delicate balance of separation of powers that is the hallmark of our constitutional framework. justice stated that regarding immigration and immigration issues, talking about being the exclusive power of congress, that the formulation of these policies is entrusted exclusively to congress. now 5 and 5 does not equal 15. no matter how many times you say it. and when 5 and 5 then equals 10, which is correct, that pasting constitutional wrong is not what made that correct. so this reliance that we've seen on some that president reagan's and president bush and president eisenhower made or issued executive action or executive orders, which in some cases may

be clearly distinguishable because they didn't set forth a new class, but even if they were not distinguishable, past constitutional acts do not get better with time. they are still just that, constitutional actions. president obama also misplaces his reliance on the authority generally granted to the secretary of homeland security. it's very different to utilize your resources to determine the status of your prosecutorial mandates and how you're going to use your limited resources. the condition of entry, though, of classes of aliens and having that denied or granted, and creating a class, a new class, is not what the president has the authority to do. as sympathetic as it might be to the plight of people involved, he simply doesn't have that constitutional authority. with all the emotion we've even seen today, you have to put that aside. it comes back to the same question, does the president have the snort by the way, if

you look at the olc memo and compare that with what the president said what the deal is, i asked my colleague if she would recommend her clients accept the deal. the deal the president talked about did not talk about discretion with the agency that could be terminated at any time with case by case determination. that's not the deal the president talked about. that's not the deal the president put in place. and i would not recommend my client to accept the deal that the president has actually offered which is very different from the deal outlined in the olc memorandum. i would ask that to my colleague because standardless absolute discretionary review by government agencies is something i've been dealing with for 30

years at the supreme court of the united states. and it generally does not go very well for the agency. olc said it was required, though, for the president's actions to be deemed constitutional. i said i would not recommend my client to take the deal. in conclusion, in our view, president obama's actions are constitutional. president obama's actions are unlawful. violate the separation of powers and in conclusion, even with sympathy to the cause of immigration reform, impatient presidents may not violate the constitution if they don't get their way. thank you, mr. chairman. >> thank you. mr. dupree, welcome. >> good afternoon. thank you for inviting me to testify and to share my thoughts on the constitutionality of the president's directive granting deferred action eligibility to approximately 5 million people who are currently here in the

united states in violation of our immigration laws. i served as principle deputy attorney general under president bush. i litigated and advised the white house on immigration policy and reform. in my view, president obama's actions exceed his authority under the constitution. the president was correct on the many occasions where he stated that he did not have the power to do what he has now done. reasonable people can disagree over how best to fix our immigration system and while there can and should be a robust public debate about how to address the status of the approximately 11 million people who are here in this country illegally, there should be no doubt that by unilaterally acting through executive action rather than through the congress, the president has circumvented the process our founder's envisioned. the framers of our constitution were well aware of the dangers of executive overreach. that is why they wrote a constitution providing for the separation of powers and why the

first sentence of article 1, section 1 of our constitution states, quote, all legislative powers here-in granted shall be vested in the congress of the united states. the framers also spoke to the president's duty to enforce the laws enacted by this congress. article 2 section 3 provides, that the president, quote, shall take care that the laws be faithfully exec cuted. close quote. in my view, president obama's actions on immigration violate these constitutional provisions. his actions violate article 1, section 1 and separation of powers by rewriting the laws of the united states not through legislative amendment but through executive fiat. they also violate article 2, section 3 because they amendment on the abdue indication of the executive's duty to faithfully execute the laws of united states. let me say a word about the take care claw claus. the president's duty is not optional. the constitution says that she shall take care that the laws be faithfully executed. and the constitution's use of

the word faithfully unscores that the president is to execute laws in away that maintains fidelity to congressional design. it is hard to see how an order directing that federal law not be enforced as to approximately 5 million people amounts to faithful execution. the take care clause does not give a president discretion to choose which laws he will enforce and which he will not as the head of the office of legal counsel under president clinton wrote, quote, the supreme court court and the attorneys general have long interpreted the take care clause as standing for the proposition that the president has no inherent constitutional authority to suspend the enforcement of the laws particularly of statutes, closed quote. the consequences of thissish slew not confined to immigration. if the president may use executive authority to simply ignore laws he does not like, then it would be possible for

future presidents to revise everything from federal criminal law to tax law to environmental law and beyond. of course, president obama's directive goes beyond mere nonenforcement of the law. it has the effect of affirmatively granting benefits, including the right to apply for work permits to those falling within its am bit. they have revoked prosecutorial discretion is well established in your nation's legal traditions. the concept predates the founding and finds its roots in the common law of england. now one can dispute that prosecutors in this context executive branch officials with the constitutional may exercise discretion in setting enforcement priorities in deciding what charges to bring or whether to bring charges at all. but there are limits on prosecutorial discretion, it applies to individual cases situations in which the judgment of the prosecutor it would be

unjust or otherwise inadvisable to apply the full force of the law based on the circumstances of an individual case. when i served on the justice department, can recall many instances where we or the department of homeland security made a determination to exercise discretion in individual cases. prosecutorial discretion, however, is not so elastic a concept that can stretch to encompass what the president has done here. granting blanket relief to a potential class of 5 million people. that is what makes president obama's action different from prior instances in which presidents have granted immigration relief. the scale of president obama's directive significantly exceeds what past presidents have done. more over in prior instances, the executive was acting to implement a new statute consistent with the will of congress. here, the executive is taking action precisely because congress has refused to act in the way the president wants. indeed, the president is attempting to write into law what congress deliberately chose not to write into law. finally, as many on this committee will recall during the bush administration, we were strong advocates of immigration

reform and we sought to get a bill through congress when we were unsuccessful, many of us were disappointed and frustrated. but we did not attempt to achieve through executive fiat what we could not achieve through the legislative process. we respected the system the framer's established. i thank the committee for convening this hearing and look forward to your questions. >> thank you, mr. dupree. >> great. >> we are pleased to have you with us as well. >> thank you, chairman. members of the committee, thank you for the opportunity to appear before you today. my name is marry lain that i'm the executive director of the national immigration law center, an organization that is dedicated specifically to helping families low-income immigrant families like mine to contribute their best to our country and achieve the american dream. i'm an immigrant from colombia, i arrived as a child two rhode island when my father was recruited to work at a textile factory there. my parents, like the parents of

those who might be eligible for deferred action under the president's executive authority, came here in pursuit of the american dream for their children. last month, president obama announced policy changes that bring much-needed humanity and transparency to our immigration system. the president's actions are well within the scope of his authority. he is relying on the doctrine of prosecutorial discretion which you heard about which provides the department of homeland security as well as every law enforcement agencies in this country the authority to set enforcement priorities to target resources and to shape how the law will be implemented. the doctrine of prosecutorial discretion is well established with solid constitutional, legal and historical grounds. first, it is well settled in the courts that the executive officials have wide latitude in exercising this prosecutorial discretion. in the seminole case of heckler versus shaneny, the supreme

court held that the agencies decision to enforce or prosecute in either civil or criminal matter is a matter of the, quote, agency's absolute discretion, end quote. this includes the agency's decision to prosecute or not to prosecute. in 2002, in enacting the homeland security act, congress expressly charged the executive branch with, quote, establishing national immigration enforcement policies and priorities, end quote. secondly, exercising prosecutorial discretion to deprioritize the deportations for certain individuals is consistent with the take care clause in article 2 e section 3 of the constitution. again, the supreme court held very clearly in chainny in heckler versus chainny that because the executive branch is rarely provided enough funding to enforce every provision of every law against every single person in our country, the executive branch must develop

enforcement priorities. the heckler court specifically says, quote, faithful execution of the law does not necessarily entail acting against each technical violation of the statute, end quote. finally, in addition to the legal authority, there is ample historic precedent to the obama administration's actions. again, every administration, republican and democrat, since president eisenhower, have exercised prosecutorial discretion to protect immigrants from deportation. president obama's executive actions are also good policy. not only will the president's actions bring order and transparency to dhs's enforcement priorities, will also add billions of dollars to our coughers. removing the threat of retaliatory deportation for workers will also improve working conditions for american workers.

moving workers from the informal economy to the formal economy will improve america's economy. and by creating a process by which individuals can come forward, apply, register with the government, the government will be able to refocus its enforcement priorities instead of separating families. most importantly, this is not about politics or abstract numbers. this is about our families. this is about our communities. it is about our country. one cannot underestimate the significant impact that this policy change will have on those who might benefit.

the mothers, fathers, young immigrants who are here, who are working, who are studying, 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 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. sensenbrenner. 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 implementing 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 fraudulently 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. you can't do it for immigration.

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 ababdication 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 went to 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 versus cheney. 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 cheney that it focussed on standing and by saying that the law on standing has allowed 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 paragraph 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. unquote. 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 capricious. >> 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 aliens 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 discretion exercised by immigration officials. that would seem right there to justify almost any discretionary feature that isn't -- any discretionary program that isn't arbitrary and capricious. >> 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 buttress 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 goes on to say, the equities of an individual case may turn on many factors, including whether the alien has children born in the united states, 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 categorical entitlement to deferred action that could raise concerns that dhs is either impermissibly 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. >> 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. 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. >> 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 done it. 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 dias, 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 grand naur -- grandfather's naturalization 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. sensenbrenner 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 hour, we understand. and committee will stand in recess. okay. >> you can watch the rest of the house judiciary hearing on immigration at c-span.org. >> with live coverage of the u.s. house on c-span and the senate on c-span 2, here on c-span 3, we compliment that coverage by showing you public affairs events and on weekends, c-span 3 is the home to american history tv including six unique series. american art fikts, touring

museums to discover what art facts reveal. and the best moan american history writers. the presidency looking at the policies and legacies. lectures and history with top college professors delving into the past and our new series featuring educational films from the 1930s through the 70s. c-span 3 created by cable tv and funded by your local cable or satellite provider. watch us, like us and follow us.

>> good morning. and welcome to the cato institute. this has been called the information age which by definition means that our era is an age of surveillance. novel threats in a uniquely decentralized era where small groups of people can pose a threat to a nation state priest previously reserved for other

nation states. at the same time, the art techture of monitoring and architecture of control that we are constructing in order to make ourselves safer threatens to undermine the preconditions of democracy and a free society. sit a by product of the way technologies work as never before when we talk to a friend or lover or family member when we read the newspaper, when we investigate topics of interest to us these issues have come to

the forefront of our national conversation recently specifically because of discussions of edward snowden but the technologies use also

increasingly are finding their way into so this prentss difficult questions. if you follow debates about privacy, forced to deal with in the language of science fiction because it involves projecting forward the implications of these new technologies not just as individual novelties but in their aggregate effect on our autonomy and relationship with this.

we also know what can be exacted when secret service tools are used without oversight. can be turned to entrench that power. as a tool of power against martin luther king and the christian leadership conference but also a whole range of anti-war feminists, disdants, as a way of trying to ensure that democracy did not progress more quickly than the people holding

the reigns of power were prepared for. as we face a world in which not just because of what intelligence agencies do and what the services we rely on our calendars and daily minute conversations. we need to think very carefully about how this unprecedented aggregation can be made compatible with a free society. it is my extraordinary pleasure to introduce someone who has been at the forefront of the fight that the imperative to galter information to protect

ourselves and those who do us harm cannot be used it to broaden monitoring of nnt and peaceful american citizens. congressman thomas massey, as many of you know, is responsible for an amendment that by an overwhelming bipartisan margin past the house of representatives security purposes by targeting foreigners could not be used in routine investigation by the fbi to spy on americans recently removed in conference from the intelligence authorization bill. it is a pattern, again, those of

us who have been watching the legislative effort to reign in the intelligence agencies will find all too familiar, but i think it's important to recognize that especially in the house of representatives, we find a really essential group of legislators who are willing to work across party lines to protect the essential lipts that really lie at the foundation of our republic. we are a country in many ways founded because we did not like government agencies prying into our business. i can think of no one better to launch the really astonishing line up of experts and practitioners we have assembled today than the congressman from the fourth district of kentucky,

who is in addition to his profound commitment to civil liberties a mit graduate with multiple degrees from that find institution. founder of a technology company and someone who is mi extraordinarily privilege to introduce to you, congressman thomas massey. >> i want to give you a peek behind the curtain of what we go through when we try to reform some of the unconstitutional spying that has gone on in this country.

some of the finer points of these issues and i also need to give credit to 2 co-sponsors of this amendment. they probably did more work on this amendment than i did. but we felt like a republican had to introduce it and i was the only republican that was willing to introduce this bill this amendment that we had all worked on. what i want to do is give you an overview of three different legislative efforts. but first let me give you a little bit of my background and tell you where i am idealogically. in 1993 when i was finishing my thesis at mit, i looked up at the television and saw something happening in waco, texas, that disturbed me.

there was a group of people that were easy to vilify. the left did not like them because they were clinging to guns and religion and the right did not like them because they were not clinging to a religion that they recognized and the individual was probably a polygamist at waco, but that didn't justify what i saw. i saw tanks running over children's go-karts and dozens of people dying in a fire. another point they want to make is that in republican primaries across the country, most of them are either red or blue and they end up being a race to the right and a race