everybody's mind about what the future looked like. >> mr. pugliaresi -- >> one of the things i would encourage the members to do is look at this through a north american lens. when you put canada in the mix -- >> absolutely. >> we really don't like this self-sufficiency approach to thinking about energy security. we really say, look, we want this platform to be productive. u.s., canada, large -- >> and mexico. let's think of it as a north american dependence. >> it may be efficient. there may be efficient solutions for the platform which allows both exports and imports. because refining configurations are all different kinds. we have a lot of very heavy capital invested in processing heavy crude. so that heavy crude ought to come down to -- from canada and get processed where it's -- that's where it's most valuable. >> that makes sense to me. so in our refining capacity in

the united states, i will follow up on your comment here, are we ready to be able to expand? or do we need to expand refining capabilities in the united states if we're going to have a mix of more sweet and then the heavier crude from canada? who wants to go with that one? >> well, it's difficult to convince refiners to expand capacity when the demand here in the u.s. is going down. typically, refineries are built closer to where consumers are. but we have a terrific advantage in technology and low natural gas prices. natural gas is used as a refinery fuel that make our refineries the best in the world. taking advantage of those situations i think is what the

refiners are doing exporting products into the global market. >> ms. gordon? >> i could say that in terms of what was said earlier, global production has become very -- it's not site specific. it's also going to happen in refi refining. so we're seeing china adding refining capacity, saudi arabia adding refining capacity. demand is really in the developing world. to move that demand closer, refining products closer to people that will consume, we're talking latin america, the middle east, africa, that's where growth is throughout asia. the market is shifting somewhat. i don't think you can draw a circle around north america easily in this market. >> although i want to. >> i know. >> thank you. >> thank you. >> at this time, i recognize the

gentleman from new york for five minutes. >> thank you, mr. chair. in a number of the hearings i have attended, i noticed when the subject is an environmental public health or consumer regulatory issues, there are questions about the estimates of the costs and benefits of the policy in question. that's fine. those questions explore the assumptions made and the analysis, the uncertainty or certainty of the estimates and how sensitive the results are to changes in the assumptions, initial conditions or data that go into the model. frankly, this is a focus of most of our conversations about the projections on climate change with much emphasis on the uncertainties and what we don't know and little emphasis on all the things that we have learned and the robust conclusions of climate models. economic forecasts don't receive the same scrutiny. frankly, they often miss very significant changes. we have spilled blood and treasurer over this commodity. it still plays a role in

fuelling our economy. we need to understand fully the implications before we make this change. i note in mr. sieminski's testimony, when he provides the energy outlook, that he includes the disclaimer, the recent dramatic declines in crude prices may affect our outlooks in the coming months. i would like to better understand how robust the benefit estimates provided in this study refer to are likely to be. dr. ebinger paints a positive picture resulting from lifting the crude oil export ban, reporting a gain in gdp. that is dependent upon which scenario is used. these are model results based on other model results. eia's model results. what are the assumptions -- i would ask the panel -- about the

world price of oil in the underlying eia scenarios? how would changes in that world price impact those given estimates? honorable sieminski, if you could, please. >> congressman, we will be looking at this and we will have more to say when we publish the annual energy outlook early next year. i think what i could say is that lower oil prices, if they were to remain, will slow down this growth in u.s. oil production. that's supply and demand in pricing. the other possible affect it could have is to make it less profitable for companies to export natural gas in the form of l & g from the united states. the reason for that is exports

are predicated on selling into a market where that gas in europe or asia is priced at an oil equivalent. lower oil prices, the spread or profitability of exporting u.s. l & g into the global market would be reduced. that might change those dynamics a little bit. there are going to be a lot of places in our forecast i think where building in a possibility that lower prices could stay for a while would have an impact. we will have plenty to say about that in coming months. >> thank you. ms. gordon, do you have anything to add to that? >> if i could add, sir, if we look at past situations where we have had precipitous price declines, i think you can look at internationally and say that

the price declines at some point become the engines of renewed growth. because the chinas and indias and brazils of the world all of a sudden if they start seeing $50 oil, they start saying, let's rejuvenate some of our economies and rev up products that didn't make sense at $100 oil. remember that i think it was in '98 that the price of oil fell i think from $117, $118, down to $38 in seven months. but it came rapidly back up. i believe, if i remember correctly, at least into the 70s and then worked its way up to where it was before the current price drop. low oil prices for those countries that are huge oil importers and fast growing populations, we talked about in asia, low oil prices are a boom. at some point it will renuf

rejuvenate. >> mr. chair, i yield back. >> time is up. at this time, i recognize the gentleman from virginia for five minutes. >> thank you, mr. chairman. i appreciate that. petroleum coke, i love listening, because i learn all kinds of thing. tell me about petroleum coke. you said earlier it was worse than coal. i'm assuming that's from a pollution standpoint. >> patretroleum coke is the bot of the barrel. it's when you ring the liquids out of oil. with heavy oils, you have these high carbon bottom of the barrel. when you put in coking capacity, you get more liquids out, which is good, but then you get more solid. petroleum coke is a solid fuel. if it's very, very high quality, which doesn't come out of refineries, it goes into steel

and glass and ceramic manufacture. if it's low quality, high in silver, high in heavy metals, that goes into power production and steam. then you are burning coal. it has 10% higher greenhouse emissions than coal and higher sulfur than some of the worst coals. it runs counter to coal. when coal is priced high as it had been recently, before we were exporting a lot of coal, china was wanting the petroleum coke because it was an economic benefit for them to burn that instead of coal. now prices of coal are low. so it's out of favor. if you remember, there was news stories last year about -- it was in detroit. there was a pile of petroleum coke that got attention. the press -- it's black. they are spread -- it spread for miles because -- it's land locked. they can't export it.

it ends up being a problem. they will want to send us the heavy oil so we export because we're closer to ports of call. >> let me go back on your testimony just a little bit in there. you said that it's now cheaper or more expensive than coal? >> coal prices have come down. it's more -- it's priced to sell. it's very hard to get data on pet coke. it's not traded. it's traded with traders. it's very person to person, company to company. because it's a byproducbyproduc builds up and you have to get rid of it. of course, refiners want to get money for it. if they can't, they have to put it into the market. it's volatile. >> from an environmental standpoint, would we be better off exporting low sulfur coal

than we would the flooding the market in china with this pet coke, am i correct? >> pet coke is worse. >> i appreciate that very much. pipelines were brought up earlier about whether or not we should build them and safety of bringing the oil. i think i understood from the comments just from you that the consensus or general understanding was is that the oil is going to find a way to the united states coming out of canada, whether by pipeline or by truck or by train. is that a fair assessment? each one of you can answer that. >> i think the question is cost. right? the reason the pipelines -- there's a value of rail. there's optionality. if you want to build a trans-loading facility, you just get a local permit.

you don't have a nepa review. if you want to build a pipe line, you cross federal land or you will do some action that's going to trigger a nepa review. we have a regulatory program that's unbalanced. you can put a rail facility and move thingings os out quickly. if you want to build a pipeline, you have a mountain of paperwork. >> i appreciate that. there was a question that i don't think has been asked in relationship to the international situation. that deeals with the u.s. won a trade case against china over their export ban on rare earth. how does that case then appear at least from a public perception standpoint when we are banning the export of our oil products? does that weaken the president's hand in the discussions with other countries about exporting rare earth and the u.s.' position on oil?

anybody want to take that one? >> it has been raised by a number of people in the think tank community as an issue. i know a number of international trade lawyers think it's quite possible that someone might bring an action against the united states for the continued ban on crude oil exports on the same premise, that it's an unfair barrier to trade. >> all right. >> i would just add that because china's oil tends to be heavier, their refining capacity isn't well suited to our light tight oil. because we can export product and there's no ban on that substantively -- >> china bringing an action. but in the think tank world, there's concern that somebody else might bring an action. >> it may be someone else. >> i appreciate that. my time is up. i yield back. >> thank you. that concludes the questions. did you want to ask some additional questions? >> i just would like to follow up with ms. gordon on -- >> i will recognize for five

minutes. >> thank you. the energy policy and conservation act of 1975 you discussed importantly also addressed vehicle standard, energy efficiency, conservation and creating the strategic petroleum perfereserve. should there be an effort to address the other sections like the strategic petroleum reserve? >> i think we're in a transition whether it co when it comes to oil. that's been obvious. oil policy, energy policy is going to be an important new chapter that follows that. >> most of that reserve is just east of where i live in southeast texas. it's important. if we're producing what we are -- although we're not producing enough oil for our own

consumption, mainly because of the types of oil we have. like i said earlier, refineries that i have represented over the years have been retooled to do the heavier crude. it would take billions of dollars to go back to do the lighter sweet. just like -- it's an investment decision if that happens. in your testimony you discuss environmental risk. stated earlier -- is a u.s. refined product better or worse than the product consumed in other parts of the world? do we produce gasoline or diesel better than india or china, for example? i know we compete with europe on the product, too. >> from a climamate perspective it's carbon, it's similar. from an air quality perspective,

it depends on the specifications. the specifications might be lower in asia. >> i know that if there's a ton of carbon going up in china, that's the same as it goes up here. that's why some of us would like to see a national agreement so we don't compete with one hand behind our back. as the u.s. produced more light sweet, the ultra low silvulfur diesel -- that's benefitting some of our trading partners in latin america, particularly i assume europe, that -- because we have low sulfur diesel. i know the refining industry went through problems. but they are doing well now in exporting it. does that help the climate, the pollution issues in other issues? >> not climate but air pollution. sulfates that are in the air. it would be more of a

respiratory issue and not climate. >> that's probably more immediate than rise in the sea level. but it does have a benefit for those countries. let me talk about petroleum coke for the last minute. the highest mountains -- highest points in my district is either a landfill or the tons of petroleum coke. it is shipped out. in 2005 energy bill where we set up loan guarantees for a number of things, including wind and solar, and my colleague is not here, we put in there for research and what we could utilize petroleum coke for other than just shipping it to china and india to burn, which puts carbon in the air but also the local -- is there any support for trying to use something alternative? i got involved with coal ash because it was used for road

roadbeds. is there anything else we could use it for? we can't burn it here because it's so bad. >> exactly. it's a matter of taking the bottom of the barrel where there's no economics left and putting more money into it. there are things you could do with that, the fuel-grade coke. you could take heavy metal and sulfur out. but it's going to cost money to do that. >> it's not economical? >> it's not economical. >> it's better to put it on a ship? >> one thing about the reserve. i think it's important to remember, this is strategic asset. we're still connected to the world oil market. we might have to change the way we distribute because of the huge flow of crude oil into the gulf coast. i don't think -- i think we should -- we will study this

carefully. things can change in the world. we're not going to get rid of the 82nd airborne. i think we ought to look at the spr that way. the world could change and we may need that. even if we're relatively independent, a price spike in the world oil market could do a lot of damage to the american economy. >> that's correct. where i come from, the goal of that was to buy that oil and put it in that when it was low. when we release it because when oil goes up, because of the embargo or whatever else. mr. chairman, you have been more than kind today. thank you. >> i want to mention, bill f flores is here. he will be a member of the energy and commerce committee in the 114th congress and a member of this subcommittee. since you sat there so patiently for all these hours, do you want to ask a few questions before we get out of here? >> i think i heard the voting

buzzer go off. first of all, thank you for recognizing me. thank you for allowing me to have the time. i will keep my comments short. one of you -- more than one of you on the panel talked about cumbersomeness of having federal policy trying to interfere with free markets. i think that's something that we on this side of the room need to always remember, that any time that we try to violate the laws of economics, it's like violating the laws of physics. you think about gravity as an example. the more you violate the laws of gravity, the harder the impact at the end. that was one of the first things that my economics instructor taught me back when i was in college. so i think that we on our side again need to be constantly reminded that the free market works best when it lets the --

when the federal government doesn't have too heavy a hand. there was some conversation about the transparency related to the oil markets. i would vigorously disagree with those comments because of this. if you say there's no transparency, that means the buyers and sellers that are out there taking this oil and refining it know nothing about it. and that's not the case. that oil is being moved around, it's being -- it's being bought and sold and refined and put into finished product and being sold to an end user and being consumed. so to say that there's no transparency in the market is just false. because buyers and sellers are out there, they are happy with the level of information that they have. if they weren't, then there would be no trading. there would be no commerce in those products. so i would not like the panel to

get too fixed to those comments because they are not true. with that, i yield back. thank you. merry christmas. >> mr. chairman, i really ask for unanimous -- >> without objection, go ahead. >> there certainly is some transparency in the market. i think the best example of why there isn't enough information in the market is the explosiveness of the railcars taking oil. the marth reket didn't know the composition of the oil. i think we're seeing physical manifestations of the fact that there isn't enough transparency in this market. >> did you want to ask for unanimous consent? >> i also want to ask unanimous consent that the report from the -- paper from the united

steel workers, be included into the record. i have here an argue from mr. mason on -- entitled "fracking." i would like for that to be included. >> these will be included in the record. also, would like put into the record a letter -- letters from the american petroleum institute, american fuel and petrochemical technology. i want to thank you for your testimony and for your patience in responding to our questions. we will have more hearings on this when we reconvene for the 114th congress. the record will remain open for ten days for additional materials. that concludes -- >> i want you to join with me in wishing everybody happy holidays.

>> you think we should? >> i think we should. >> merry christmas, happy holidays and enjoy the break. that concludes today's hearing. thank you. president obama holds his year-end news conference this afternoon at 1:30 eastern before he leaves for his christmas vacation. see the president live on c-span at 1:30 eastern. at 8:00 tonight, interviewed

with two committee chairs who are retiring from congress. beginning with dave camp and then buck mckeon. here are a few moments of conversations with congressman camp. sgli kn >> i knew i wanted to get on the ways and means committee. at that time, the steering committee called the committee on committees, you knew you were in a government process. it really is a campaign. it's about the votes on that committee who determines who gets a seat on a committee like ways and means. you are talking to every member on the committee. there's a particular member that -- that wasn't for me. i just didn't know what to do. just sort of out of the blue, i dialed president ford's office in california. i had met him several times. i wasn't sure he knew me. i knew him. his secretary answered the phone

and said, oh, hold. and he said, dave, how are you? you said, i used to be a leader. somebody owes me a favor. i will make a call. and he did. that person came to me on the floor and said, anybody who can get a former president of the united states to call me i'm for. he changed his vote and was for me. i did get on ways and means. i told susan ford that story. i'm not sure she cared. it was a changing moment for me. he was very gracious and the fact he was in his office and took the call when i had not scheduled the call. i literally calledézn out of t blue. it was very much a hail mary pass. >> see this entire interview with dave camp tonight on c-span. just before that, starting at about 8:00 eastern, armed services committee chair buck mckeon, they talk about achievement and give thoughts on the future of congress.

here are some of the programs you will find this weekend on the c-span networks.

find our schedule at c-span.org and let us know about the programs you are watching. the house judiciary committee held a hearing on president obama's executive action allowing some undocumented immigrants to stay in the country and work legally. republicans on the committee contend the president does not

have the authority to take the measure. witnesses on both sides of the issue testified before the committee. >> good afternoon. this hearing of the judiciary committee will come to order. the chair is authorized to declare recesses at any time. we welcome everyone to this more than's hearing on president obama's executive overreach on immigration. i will begin by recognizing myself for an opening statement. i want to point out to the members and to the audience in attendance today, you are welcome to be here. but rule 11 of the house rules provides that chairman of the committee may punish breaches of order and detocorum by exclusio from the hearing. president obama announced a power grab. he has declared unilaterally that by his own estimation almost 5 million unlawful

immigrants will be free from the legal consequences of their lawless actions. not only that, he will in addition bestow upon them work authorization and other benefits. this despite the fact that president obwbama stated over 2 times in the past that he doesn't have the constitutional power to take such steps on his own and has repeatedly stated that, i'm not a king. we will now ask that the video be rolled. >> the notion that i can 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 the books by congress that are very clear in terms of how we have to enforce our immigration system

that for me to through executive order ignore the congressional mandates would not conform with my appropriate role as president. i can't solve this problem by myself. we're going to have to have bipartisan support in order to make it happen. we're also a nation of laws. that's part of our tradition. the easy way out is to yell and pretend like i can do something by violating our laws. i can't simply ignore laws that are out there. i've got to work to make sure they are changed. i know some here wish that i could just bypass congress and change the law myself. but that's not how democracy works. 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 immigration advocates, they wish i could just bypass congress and change the law myself. but that's not how democracy works. i score an oath to uphold the laws on the books. i know some people want me to bypass congress and change the laws on my own. believe me, the idea of doing things on my own is very tempting. i promise you, not just on immigration reform. but that's not how -- that's not how our system works. >> change it. >> that's not how our democracy functions. that's not how our constitution is written. the problem is 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. congress right now has not changed what i consider to be a broken immigration system. what that means is 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 i can on my own. what i have been able to do is to make a legal argument that i think is absolutely right, which is that given the resources we have, we can't do everything congress has asked us to do. what we can do is carve out the dream act folks saying, young people who basically have grown

up here are americans that we should welcome. but if we start broadening that, then 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" own fact checking concluded, apparently he changed his mind. i should add a jewelled crown worthy of king james of england who precipitated the revolution by dispensing with laws passed by parliament. the constitution is clear. it's congress' duty to write laws. once they are enacted, it's the president's responsibility to enforce them. the con sti toougstitution requ president take care the laws are

faithfully executed. the president wants a pathway for unlawful immigrants. he is upset that congress won't change america's immigration laws to his liking. he has decided to act unconstitutionally under the guise of prosecutorial discretion. the authority as to whether to enforce or not enforce the law against particular individuals, this power must be judiciously used. clinton administration ins commissioner told her agency that prosecutorial discretion is a powerful tool that must be used responsibly and that exercising prosecutorial discretion does not lessen the commitment to enforce the immigration laws to the best of our ability. it's not an invitation to violate or ignore the law.

even president obama's department of homeland security secretary jeh johnson admitted to the committee there are limits to the power of prosecutorial discretion and there comes a point when something amounts to an abandonment to enforce a duly enacted constitutional law that is beyond simple prosecutorial discretion. 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's a difference between setting priorities, focusing more resources on those cases deemed more serious and setting enforcement -- setting enforcement free zone for millions of unlawful aliens by proclaiming there will be no possibility of removal for millions of unlawful aliens, president obama eliminates entirely any deterrent affect

our immigration laws have. he states that those lawsimpuni. such actions will inadvertise others around the world to come here illegally, just like his deferred action for childhood arrivals program encouraged tens of thousands unaccompanied alien minors 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 proclaim it is constitutional. but that memo finds that "immigration officials discretion in enforcing the laws is not unlimited. limits on enforcement discretion are both implicit in and fundamental to the constitution's allocation of governmental powers between the two political branchs." the memo admits the executive cannot undered guise of exercising enforcement attempt to effectively rewrite the laws

to match its policy preferences. the memo quotes the supreme court's decision in stating that the executive branch cannot "consciously and expressly adopt a general policy that is so extreme as to amount to an abdication of its statutory responsibilities." the memo in fact is an indictment of president obama's actions. the president also mistakenly claims that his actions are nothing new. it's 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, there by relying upon the constitutional power given to a president to conduct foreign affairs. for example, chinese students were protected from deportation in 1989. orphans who were in the process of being adopted by u.s.

citizens before the devastating earthquake of 2010 were granted humanitarian parole to come to the u.s. what about president george h.w. bush's family fairness policy which the white house cites? size and scope matter. and only about 80,000 aliens applied for that program. as to the white house's claim, the fact checker concluded the 1.5 million figure is too fishy. indeed the 100,000 estimate might have been optimistic. "the washington post" assigned the white house claims three pin oak yos. without any crisis to justify his actions, and in granting deferred action to a totally unprecedented 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 the president. the obama administration is driving full speed ahead to a constitutional crisis, tilting the scales of our government in his favor and threatening to unravel our system of checks and balances. he has entered the realm of rewriting the law when he can't convince congress to change them. as law professor david rubenstien has written, a more broadly a policy applies, the more it takes on hue of law. the president is making his relationship with congress increasingly toxic by unconstitutionally acting on his

own. president obama's short sighted actions have 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 witnesses. now i am pleased to yield to the gentleman from michigan, the ranking member of the committee, mr. coniers. >> thank you. ladies and gentlemen -- >> my daughter was born here. why do you want -- >> in a hearing room, members of the audience must behave in an ordinarily fashion or they will be removed from the hearing room. the police will remove the disruptive members from the audience immediately. >> because you are protesting for the executive order that's not doing anything to fix --

>> the police will remove the members of the audience from the hearing room. [ applause ] >> stop deportation. >> stop detoportation of famili. [ applause ] >> the gentleman from michigan for the interruption, but he is now advised to proceed with his opening statement without penalty for the delay in time. >> 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. 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 less palletable than the next, but hasn't even reported them to the floor. 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 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 immigrants 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 familyies with unitd

states citizen children from being torn apart. families led by hard working mothers and fathers. finally, these actions are not only inappropriate -- are not only appropriate but they are lawful. there's a great deal of information available publically to support the president. on november 20, 11 prominent legal scholars wrote a letter explaining the president's action. -- 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 byliberal professors and conservative professors. five days later, 135 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. i ask unanimous consent that the letter from 135 investigative

immigration professors be include 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, 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. 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. 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 sensoring 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 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, preserve, protect and defend the constitution of the united states. 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 tirrany, 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 abdication of the president's statutory responsibilities. american people themselves are opposed to the latest executive action. 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 has 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. nank you thank you. i yeel back.

>> 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. 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 innovation 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. before i entered public service, i practiced and taught immigration law. 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 part of our own group of eight here in the house where we tried to craft a bipartisan house bill and we did actually write a bill, but in the end, we were unable to move forward. so it was of course in the face of congressional inaction that the president decided to do something. he recognized there are costs to doing nothing and he looked for opportunities that's permitted in current law to avoid some of the costs. there are many things the president can't do to fix our immigration system and nothing the president did alleviates congress from taking action. i think it's important to remember that the president announced reforms in many different parts of the immigration system, including a new strategy to force enforcement on the southern border, a pay raise for i.c.e personnel. 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 duty does not permit the president to act against the law. in the supreme court of arizona vs 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 removal 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 account ability programs. it 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 1.5 million people will be protected from deportation. 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. to split families encourages violations of the law as they reunite. a strong enforcement strategy can also be a humane enforcement strategy. it's no different than today. if there's one key difference between the family fairness 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 on serious criminals. finally they are consistent with basic american values like accountability, family unity and compassion. i would note that hr 15 is sponsored by 200. 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 said multiple times that five plus five equals 15, and then said five plus five equals ten. he'd not be wrong when you finally said five plus five squalls ten. second the timing of the president's statements are important.

all of those statements were made before march -- >> mr. chairman, how many finallies can we have? >> the chair is giving some leniency because the chair's own opening statement was in excess of five minutes. >> but i am almost through, i will just note that those statements were made before the president asked the secretary of homeland security to do a complete review of what could be -- that resulted in his memorandums by the office of legal counsel, and finally as we will see throughout this hearing, the legal question isn't even a close one. the president has clear legal authority to form removals when it's in the national interest. chief justice roberts reaffirmed that principle just two years ago, our immigration law has recognized this authority, past presidents have used this

authority regularly, our president is doing so now and i for one am grateful that he is. and i yield back. >> thanks to the gentlemen, without objection, additional opening statements will be made part of the record. we thank our witnesses for joining us today. if you would all please rise we will begin by swearing you in. do you 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 jurisprudence 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 cases 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, director of the national immigration law center, she 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 juris doctorate degree from the school of law, served on the commission on immigration and is currently a member of the board of directors of jobs with justice and welcome.u.s. i welcome all of you, i would ask that each witness summarize his testimony in five minutes or 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 here. 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. 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 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 criminal 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 doesn't apply to anyone who comes recently. he says congress has failed and are we a nation that cruelly rips a child away from their parents arms. apparently we will accept this cruelty and rip children from their parents arms.

if they came here before the arbitrary date of january 1, 2010. 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 relies on historical incidents. and second reading a lot into a few selected segments of the statute. case law is precedent, historical examples are not.

in any event, others have already distinguished those examples. they're not part of my -- about my theory, i'm not going to duplicate 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? the "new york times" said that obama directs congress to enact overall immigration. the olc opinion admits that a general policy of nonenforcement

would foreclose 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. >> 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. determining 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 grandson of a russian immigrant 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 grandson of that russian immigrant. 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 authority. 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. they 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 executed. 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 abdication of the executive's duty to faithfully execute the laws of united states. let me say a word about the take care clause. 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 underscores 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 this are 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 ambit. they have invoked 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, i 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. moreover 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. 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 to 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 agency 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 cheney 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 coffers. 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 is undeniable 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 soul 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 up 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 be 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 jeh 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 in effect abdication 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 cheney, 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. 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' authority to say 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 ñ 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 constitutionally 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 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 galvin, 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 to 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. >> thank you, sir. mr. dupree and madame, let me put this question jointly to you. i've been advised there's approximately 5 million that have waited in line, complied with the law who may fall victims of double standards. is my concern justified?

>> i think it is. fear and i feel badly for people who have been waiting in line, waiting their turn and now unfortunately may be penalized and that they're moved farther back in the line precisely because they had the bad judgment to respect our laws and play by the rules. >> and is 5 million an accurate account? >> that sounds right to me. i don't profess to have personal knowledge of that, but that sounds right. >> madame, do you want to be heard over that question? >> sure. i completely agree that there is a need for -- to address the backlog, the visa backlog and frankly this is where congress needs to act and pass immigration reform so families can be reunited. however, we do have 11 million people in this country and what the president has done has said individuals who are parents of u.s. citizens lawful residents are low-level priority. however, he will continue enforcing the law based on the appropriations you have provided.

so there's no abdication 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 without 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 from 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, 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 evolved 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 expressly adopted a general policy that is so extreme to amount to abdication 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 emphasize it is 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 united states 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. close 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 recognizes himself for his questions and will give the gentleman, mr. rotunda an ?q  additional few seconds to respond again to that. >> galvin 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 iy 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?