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?

>> to make a 30-second comment on what you just said. >> i am not going to yield to you. i'm going to ask my questions of the gentlemen. >> the president has dispensed the law, suspended the law until he says otherwise. that is not what you normally think of as prosecutorial discretion, typically involves suspensions of criminal law, not the immigration laws, at least the civil aspects of immigration. >> and president obama sites an opinion of the justice department's office of legal council to justify his executive legalization of millions of unlawful aliens. isn't it true that the legal counsel doesn't have a particularly great track record when it comes to questions of executive power. the obama administration in 2012 touted an olc opinion justifying the president's controversial recess appointments. didn't the supreme court rule those appointments were constitutional in a unanimous 9-0 ruling. >> he lost 9-0.

>> the justice department office of legal counsel states that the sail yen feature of class-based affirmative application process with threshold eligibility criteria does not in and of itself cross the line between executing the law and rewriting it. this is because each program has also left room for case by case determinations giving immigration officials discretion to deny applications even if the applicant fulfills all of the program criteria. this feature of the proposed programming ensures that it does not create a categorical entitlement to deferred action that could raise concerns that dhs is either impermissibly attempting to rewrite or categorically declining to enforce the law with respect to a particular group of undocumented aliens. however, in president obama's deferred action for childhood arrivals doca program executive came to the u.s. as minors the promise of discretion for

adjudicators is mere pretense. in reality, dhs has admitted to the judiciary committee, that if an alien applies, they will refer deferred action. if applicants fulfill the criteria. thus by the office of legal council's own admission, the president's doca program is constitutional suspect. the rules -- >> mr. chairman -- >> are you using your own time? >> i'm using my own time. >> i'm glad that you announced that. thank you very much. >> the rules of the game will most assuredly be the same for president obama's latest executive thus isn't it true that the olc would also clearly find the president's latest constitutional suspect? mr. sekulow? >> here is the situation. when you read the olc memorandum and the justification for the case by case individual analysis, it goes on to state -- i wish some of the people that were protesting would stay for the rest of this and see if they

like this deal so well the deal the president put forward because as he says, as we previously noted deferred action conferred no lawful immigration status, provides no path to lawful citizenship and is revocable at any time in the agency's discretion. that is markedly different than what the president told the 4 million people to come out of the shadows from what he told him and olc said he could do. on the individual case by case determination and look at in the context of reality, there is no way that it can be handled on a case by case basis so it's either a blanket exemption across the board or it's not. >> mr. dupree, do you want to add? >> i agree. the case by case analysis is window dressing. this policy is plainly unconstitutional. >> it's a blanket coverage. >> uh-huh. >> the chair recognizes the gentleman from virginia, mr. scott, for his questions.

>> thank you mr. chairman. we put an end to this debate by passing some kind of reform. apparently many on both sides of the aisle agree with the policy and so instead of arguing process, let's get on with comprehensive immigration reform. but in the meanwhile, it's been acknowledged 11 million people are potentially subject now to deportation. congress has spoken and has not appropriated anywhere close to enough money to deport everyone as my colleague from california has said. and so ms. hanicapie, we have to establish some policy as to priority. what's wrong with the policies articulated by the president? >> so there's nothing wrong with the policies announced by president, in fact, they are based on congress' will over the years to say that we should respect family unity. and that the fact that the

administration has decided to focus on the parents of u.s. citizens and lawful permanent residents is good policy and the administration gets to decide, they have that executive n low-level priority so that they then can use and follow the law the appropriations that have been provided by congress to focus on serious criminal individuals who pose national security threats, et cetera. >> thank you. mr. sekulow, where the states have eliminated prohibitions against marijuana, they're not going to prosecute any low-level marijuana cases, would that be constitutional? >> i think that supremacy clause if there's a federal law on marijuana use the state can't override it. >> that's right. absolutely right. can the -- if the president says not withstanding that reality, they're not going to prosecute cases, would that be constitutional? >> on a case by case basis, utilizing prosecutorial discretion, he could do that.

what he could not do is say we're not longer going to enforce the drug laws in the united states or even particularly the marijuana laws in the united states. that individual case by case determination is critical, but it's in this memo because it was the only way to justify the president's actions. >> so it would not be constitutional to not prosecute in those states? >> if the president were to determine as a matter of executive action that he was not going to enforce the laws against utilization of marijuana as a criminal act, i believe that that would not be within his authority. >> in those -- >> in those states. saying on an individual basis he wants to exercise discretion, he can do that on an individual basis. >> and if you disagree with that, then that's pretty much where we are on this debate? >> pretty much. >> okay. >> i understand president bush

covered about 42% of the undocumented population. this executive order covers about 35%. if -- can you explain how president reagan, clinton and bush, can you remind us you how they can did something but all of a sudden president obama can't do essentially the same thing? >> as i said in the written testimony, and as i said in my opening statement, i don't believe that president bush, president clinton, president bush, president obama, have the constitutional authority to do what they did. and the fact that it's been done for four administrations and over 25 or 30 years as i said constitutional violations don't get better with time. some have arced there are distinctions at play here. i don't take that position. i take the position that if you look at it just constitutionally, was there a constitutional basis upon which those actions were taken and frankly, i don't see it.

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

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

as you see here and you hear, there's a lot of agreement of the need for constitutional -- a constitutional path, a legal path of immigration reform. look, when i held my grandfather's naturalization papers up, it means a lot. i'm the grandson of that russian immigrant, i get it. but the process has to be right. and i think unfortunately the president's action, which i still think is not only constitutional suspect but dangerous for the potential client, i don't think that advanced the debate because we're talking about as congressman scott said, we're talking about this instead of getting real comprehensive immigration reform through which would include border security. >> and i think, you know, i know mr. sensenbrenner said we're here to figure out why he did what he did. i don't think that's helpful at

all. i mean, we could -- we would probably come up with a hundred different variations. i don't think that's material. it's whether it's constitutional or unconstitutional. i think we go back to this little book here, how our laws are made. i mean, you know, fifth grade. and i want to introduce this. >> without objection, it will be made a part of the record. >> and then we back that up with not only section 1 of article 1, but section 8, which actually says to establish uniform rules of naturalization and it didn't give it to the president. clearly and simply gave it to the congress. now, some of us must disagree with that, but it's the constitution. >> just a brief comment. justice jackson said that president's power is at its lowest when he's acting contrary to the express or implied will of congress.

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

>> why? >> in fact, i think it was mr. scott who referred to, let's discuss policy rather than process. but the point is process matters. it mattered to our founders and should matter -- >> let me tell you why it ought to matter to those who are in our country without legal status. many of them came here because there was no rule of law in their country. and they came here because we have rule of law. and to come or even for us to allow them to come and start with a violation of rule of law, actually degrades not only our citizens but those who are here, who we all -- the protection of our laws, whether you agree or

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

follow the act of congress by enforcing and using the appropriations for 400,000 deportations a year and secondly exercise prosecutorial discretion. >> he is not providing any legal status to individuals, simply temporary reprieve from deportation. there is no legal status that is being conferred. >> the committee is advised that we have three votes on the floor and we will stand in recess and we will reconvene immediately after those votes. it's my understanding that mr. rotunda has some concerns with the flight delay -- or a flight that he doesn't want to miss and the committee will certainly work with him to accommodate that.

if you can stay as long as possible, great. but if you need to leave during this vote period, which is going to last at least a half an hour, we understand. and committee will stand in recess. okay. we're going to call this hearing back to order. thank you for waiting. i apologize. i don't think we'll have anymore interruptions and the chair now recognizes congresswoman from california. >> well, thank you very much, mr. chairman. and i'm glad that the -- obviously the last votes of the hour have resulted in a much smaller panel back from the votes. so we will not be here that much longer. since all of this is submitted to the record under oath, i want to make a correction i'm sure was inned a vert tent. in your win tchl on page five,

footnote 22, you assert there was a provision in the statute that allowed for humanitarian relief for family members. and i want to correct the record. because it's exactly incorrect. let let reread it. it is the intent of committee that the families will be on taken no special petitions right by virtinjurvirtue of the legis. they will be required to wait in line as the same as new resident aliens. the provision you reference in the footnote relates to humanitarian waiver but only for

those individuals if you look at 1401 are who are ineligible for other reasons. and so it specifically does not provide relief to individuals who were made intentionally ineligible for relief. i would ask unanimous consent to put the public record into the record. footnote 21 on your testimony, you mentioned the crs report. about granting relief. i think it's important and i would ask unanimous consent to place into the record the conventional research service report is that referenced. that was the mote notable time

that it was that for domestic policy considerations rather than a crisis in foreign nationals homeland. i think that's important because you and mr. dupre have indicated that prior grants of relief were related to the president's inherent for policy position and that hasn't been the case for many decades. and i'm sorry mr. rotunda has had to leave because i did want to comment on a couple of the points that he made. he mentioned -- let me photo

you, mr. dupre. you mentioned in your written testimony a former head of the office of legal council under president clinton. and we researched who was that person and it turns out unless there were two individuals who made the exact same comment that it was walter dillinger. and it occurred to me that although you're questioning him, mr. dillinger is one of the ten legal scholars who has written to us saying they do not disagree on the power of the president and that they have reached the opinion p president's actions are completely lawful. in fact when he was making the take care cause comment, it was

in reference to or opinion regarding whether the constitution limits the authority of the federal government to submit to binding: arbitration. and the olc opinion concluded that there was no such constitutional prohibition. it does not necessarily entail acting against each technical violation of the statute, but the case cited has nothing to do in my judgment with the points that you are making relative to the immigration matter. i'm wondering since we -- since we only provide sufficient funds to deport about 4% of the undocumented population a year and since the statute itself

charges the homeland security secretary to establish natural immigration enforcement policies a , how would it lead you to the conclusion that it's somehow impermissible? >> mr. chairman, i ask unanimous concept that the gentle lady be granted two additional minutes. >> one minute. >> my view is that there is no question that the executive and the department of homeland security have the constitutional power to set enforcement priorities. in my view, the setting of enforcement priorities is inherent in the concept of discretion and it is something that is committed by our congress to the executive. where i think that president obama has gone awry is, number one, in indicating that he

essentially about l. abandon enforcement as to a very significant percentage of the affected population and, number two, that this really goes beyond a mere statement of saying we are not going to remove you. this amounts to a determination that will enable potentially 5 million people to claim benefits under federal law. >> there are no benefits. and i would like to -- we don't agree on the constitutional question, but do you note that section 274 ah 3 of the immigration nationality act does -- >> your time has expired. >> may i ask unanimous consent to put things into the record? w >> yes. >> i would ask you unanimous consent to put the following statements in. statements by the nags hispanic leadership conference, lutheran immigration refugee church,

church world services american federation state county and municipal employees, american federation of teacher, asian pacific american labor alliance, coalition of black trade unionists, economic policy institute, communication workers of america, jobs with justice, labor council for latin america development, labors international union of north america, national education association, uniteded auto worker, you night food and commercial workers, united steel worker, asian americans advancing justice, american immigration council, american immigration lawyers association, apple seed, common cause, farm worker justice, latino victory project, la tie know american working group, national council one america and we belong together along with ten stories compiled by united we dream. >> without jouks those documents will be in the record. the chair now recognizes

congressman from california mr. issa. >> thank you. you're familiar with the youngstown versus ohio -- >> yes. >> is there any question in anyone's mind whether or not the basic question of the president is relying on his constitutional authority and not on any statute tugs authority in any case in. >> he believes he's relying on his constitution authority. youngstown steel, i don't think he meets that standard at all. >> presuming that he is relying clearly not on the intent of congress, clearly when he talks about work permits and so on going well beyond any statutory tree as that exist, he has only his constitutional authority. so let me ask a series of questions. first you and then the other witnesses. if the president decided to expand his current definition to include all persons with health issues, would there be any

difference in that basis if he decided -- i'll go through a quick series. if he decided that any person who had a means of support, any person who had gainful employment, any person who had a life threatening disease, any person who was unable to find a job in their home country any person who had been here more than five years, period, wouldn't all those be just as binding as the one that he has created in order to create almost half of all illegals becoming legal? >> ifis analysis is correct, that would be correct. >> so the president could at anytime pick any category, any group of people and allow them all to stay here simply under the basis that he created a list

of requirements that if he met them, they could stay? >> yes. anden der his theory, he could change his mind the next day and say now you all have to leave. >> and let go into that because for all of you i want this question. i authored the alien accountability act that allowed for a six year hiatus of deportation of any individuals who came forward, voluntarily submitted themselves and stood up for a procedure in which they would only be guaranteed a temporary work permit if they could show that they were gainfully employed and then they would be subject if not renewed to then leave. it looks a lot like the president's act. the difference veers is that it would have lasted for more than just the president's time. in this case when the president's term expire, the next president can be just as arbitrary or even this president can be just as arbitrary. so the reason i couldn't get a

single democratic co-sponsor, you including howard better murs that the interest groups said they will never sign up for this because they would come out of shadows, expose themselves and at anytime could be deported. from a practical standpoint, are there two truisms, one, if you can name this category as broadly as you do, can't you name any category. >> yes. >> and, two, if in fact you want people to come out and disclose themselves, on what basis would this lack of full force binding agreement for more than the whim of the president's next morning coffee, why would this cause people to actually come from the shadow? lastly, the gentle lady, i want to know if in fact if people don't come from the shadows under this act, has the president still given them

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

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

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

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

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

it lists the priorities according to terrorism, felons, multiple misdemeanors. it is written out very clearly. in this case, it clearly indicates that the supreme court has said discretion in the enforcement of immigration law, unauthorized workers trying to support their family pose less danger than those committing crimes and it is based on many factors. clearly what the president enunciated. although you are dynamic legal scholars and those who have gone to law school relish your cerebral abilities but you are wrong. it is based on emotions and law school opposition despite your

prowess, i am not calling names here because we have a supreme court that says this is within its discretion. i have a question for mr. dupree, quickly, if i can. if you would, ma'am, we've been hearing about stay under the covers, don't come out. that's frightening people. again, just putting people in a box. what is your thought about continually telling people that as a lawyer, i would advise my clients not to take advantage of this executive order. i quickly want to ask mr. dupree that he quoted from one of the counsel from bill clinton. i want to ask him who that counsel was and what was the reproach of his citing that person. >> great. thank you for the question congresswoman and for your leadership on immigration for many years.

the national immigration law center has been very involved in the implementation for child and deferred arrivals program. the new program announced by the president for accountability is similar and premised on the same thing. as lawyers we do advise what the risks are, the fact this is an individualized application someone will look at the application, look at the evidence, are you eligible for the criteria, do you meet that criteria and only at that point will the department of homeland security decides whether that person merits action and if the status quo is unacceptable, as i shared in my testimony, and parents, the mother who was here today was the first to come out of the shadows to make sure she's there for her daughter at the end of the day. they will take that risk even if a future administration ends this program.

>> would you have mr. dupree answer my question. who are you citing from? >> walter dellinger's opinion to set defining arbitration. >> you are aware he has said this executive order is consistent with governing law and policies congress has expressed in the statutes. >> yes. if i could address that. congresswoman, i like law professors, i have been known to associate with law professors. the day we choose to elevate the opinions of the law professoriat over the constitution is a day i fear for the republic. >> i doubt that that is the case. he was in the office of legal council and i imagine he had to read the constitution. we will disagree but not be disagreeable. i yield back. >> the chair recognizes congressman king. >> thank you, mr. chairman. i thank the witnesses for your patience to come back to this congress after our votes on the floor. i would first ask if each of you

have read 33 page olc guiding document? is that true for each of the witnesses and let the record reference they nodded or affirmed yes to that. so i would take you back to a time in my memory when then secretary of homeland security janet napolitano sat at that very table and we had a discussion about the lack of constitutionality of the morton memos and doca. and i promised her they would face litigation, and they have drug out, as we likely expected. i also found on that foundational document she referenced on an individual basis only seven times in a 1 1/3 document and i see in this advice to the president that purports to rationalize how the president can conduct himself in a constitutional fashion, i put it through my word processor and

used these phrases, case by case, discretion, individual, those three searches and i came up with 152 incidents of it in this 33 page document, which caused me to think that i know they were preparing for the litigation in the morton memos that had seven mentions of individual basis in it, but i didn't realize how paranoid they were about the litigation that's bound to come in the 33 page document here of the olc, office of legal council. i'd like to put in the record the things i picked out of here. i didn't read the whole thing like y'all did but got through the first 30 pages i concluded the advice that says no to the president, i wouldn't have followed it any longer, i guess i was right the 22 times i told the public i didn't have the authority to do this. one thing important is deferred

action does not defer any lawful immigration status. another one, dhs' decision not to seek alien removal. that's just an underlying component. i continue, may apply for authorization to work in this united states under certain circumstances, that being a discretionary decision of the executive branch of government, as i understand it. i skip to page 6, where this document says the executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preference. continuing. an agency's enforcement decision could be consonant with rather than contrary to the congressional policy underlying the statutes the agency is charged with administering. and further in the same paragraph page 6 when they take matters without implied consent

of congress his power is at the lowest ebb. and the executive cannot consciously or expressly adopt a general policy so extreme to amount to abdication of its statutory responsibilities. there's more. the first third of this is a devastating article, if you're the president, trying to defend your action. i'd start first, and ask could you begin to explain to me what i'm missing as i read this olc document. >> no. the president's lawyers clearly advised him in their opinion to meet constitutional scrutiny, there would have to be individual case by case determination which is revokable at any time at the agency's discretion which is markedly different than the deal the president offered when he gave his speech. >> on an individual basis only, would that be a class or group of 5 million people, perhaps? >> well, that's -- the reality is an individual determination on a case by case basis with 5 million people cannot happen. >> mr. dupree, would you care to comment?

>> i shared your reading of that memo. that struck me as remarkable, the memo lays out several legal& premises correct in my view, many are correct, the conclusion it draws from the premises is profoundly flawed. the people there are extremely smart and in portions of the memo they accurately state the law but i think they completely misfired advising the president what he proposed was constitutional. it plainly is not. >> i did read the concluding paragraph. put that in the record, in sum for reasons set forth above we conclude the dhs' proposed prioritization policy and deferred action program for parents of u.s. citizens and lawful permanent residents would be legally permissible. i would say that's inconsistent with the fist seven or eight pages but the proposed action program of doca recipients is not permissible.

could it be they said the doca recipients came here due to no fault of their own so it has to be somebody else's fault, would that be the parents of the doca recipients? >> the time has expired. >> >> could i have you answer the question, mr. chairman. >> i respectfully disagree with my colleagues to the right that it carefully lays out what the president's limitations are and clearly states the program the president has announced falls within those legal limits. the way the current doca program exists individualized adjudications. i have assisted those that put them together. >> could it be they're the ones at fault? >> his time has expired and documents entered into the record. the chair recognizes mr. cohen. >> could i ask unanimous consent to put two things in the record. >> go ahead. >> there's been a lot of

discussion about authorized employment. i would like to put sections 273 ah 3 into the nationality act along with the regulation providing that those aliens who have deferred actions may receive work authorization in the code. >> without objection, mr. cohen, you're up. >> mr. chairman, could i ask unanimous consent to, instead of stopping this, we admit the entire immigration nationalization code into the record so we don't have to go into it piece-by-piece. it is law. >> thank you. >> let me ask you a question, ma'am. i believe you said that you believe the president's actions are lawful, is that correct? >> that is correct. >> it's because he has discretion, prosecutorial discretion. some people have asked that he

had said in the past about some set of facts or laws that he didn't have this authority and he changed his opinion and you gave a reason for that. let me ask, was the -- i don't recall, i don't know anybody here does, what are the facts upon which the president said he didn't have the authority were they the same limited situation he has going now doing deferred prosecution? were there other responses to people that wanted a fast track to citizenship and other things that are not part of this program? >> that's a very good question, congressman. what the president was responding to was basically demands from the immigrants rights community and grassroots organizations and immigrants themselves to stop all deportations. that was a consistent demand he often said, no, i cannot do that. the second piece i tried to explain in my testimony earlier, the context, the timing of when the president was making those comments was always because he was specifically focused to getting immigration reform done

through legislation. i should share on march 14th earlier this year i sat across from the president and specifically talked to him about the need for him to exercise his legal authority. he said i'm there and need to focus on immigration reform and all you immigration advocates need to focus on immigration authority. he disagreed of the status, doca or workers who have been here five years that meet certain criteria should be eligible. this administration has decided, by consulting legal counsel to take a more conservative approach what discretion they're willing to take on and also have set forth the specific enforcement priorities. >> and mr. sekulo, you agreed -- first, let me finish up, the foundation the president acted you believe was constitutional is the same foundation president

reagan and george herbert walker bush acted on? >> absolutely. they have all including presidents reagan and president bush senior used prosecutorial discretion to provide -- at the time it was voluntary departure. here, it's the same thing, a different type of prosecutorial discretion and different type of >> you said you agreed and maybe differed a little bit, you threw in reagan and president bush the second they were wrong and four wrongs don't make a right. >> presidential violations don't get better with time. i don't see an underlying statutory basis -- you can be sympathetic what the president is trying to do.

>> let me ask you this. i know you're not a politician, why is it all the other four instances nobody came out and questioned the president's authority from either side and nobody came out and filed a lawsuit and nobody suggested a possibility of impeaching presidents bush, reagan, clinton, they did get to clinton for whatever else and then bush? what's the difference? why does this president get it different from all other presidents? >> i think you answered it, the political element to it the shear numbers and scope what we're dealing with. you're dealing with 5 million people. when you asked the question i think was a good one was the president talking about deportation or something else, let me read you the exact quote. he was at a speech, had hecklers much like we saw today concerned about this and they were saying stop the deportations. the president said you're absolutely right there have been significant numbers of deportation. that's true. what you're not paying attention

to is i just took an action to change the law. the president views even though law. i donlt think what any of these presidents have done is more in institutional framework. >> do you believe, you're not a politician either, the reason why the response to this has been so different under this president? do you believe it's because of the number or do you believe there's some other reason that makes this president different from all other presidents. >> i would have to say i do believe this is different. he is the first african-american president. e he is being attacked for a number of issues. historically every single president since eisenhower has used discretion and executive authority. i would also add when bush sr. exercised that discretion, they too believed that they were going to be covering about 40%

of the undocumented population at the type time. it was after congress said they were not going to cover the children and spouses of immigrants who who were legalized. they had an amendment that expressed denied and defeated that would have done what president bush decided to do any way. >> thank you, mr. chair. >> chair recognizes the congressman. >> thank you, mr. chairman. and thank all of you as witnesses for being. here today. mr. chairman, of all of the relevant premises i think we could consider perhaps the most foundational would be to read the oath that president obama made when he laid his hand upon the lincoln bible almost six years ago. i do solemnly swear that i will faithfully execute the office of president of the united states and will to the best of my ability preserve, protect and

defend the constitution of the united states. mr. chairman, i believe the recent executive action by the president on illegal immigration is categorically incompatible with that oath. i'm also convinced there are few things a president can do more dangerous to a republic such as ours. if african-americmerican presid future should consider themselves unconstrained to the constitution as a matter of routine, the rule of law in america will be no more. so much of what so many men and women have died on dark battlefields to protect will be undone. these are not light issues, mr.

chairman. so my first question is to you, sir. justice of the supreme court james wilson once explained that the take care clause meant that the president has the, quote, authority not to make r or alter or with the laws but to execute and act the laws which are established, unquote. so sir, do you believe that the president's actions comport with the conclusions and is the president refusing to adhere to the take care clause in an attempt to evade the will of congress? >> i think that's the fundamental question. it's the president's action more in constitutional authority. in my view, it is not. >> you state in your testimony when president bush was unable to get. comprehensive immigration reform through congress that we did not attempt to achieve through executive fiat what we would not achieve through the legislative process.

we respected the system the framers established, unquote. that's your testimony. do you believe that this administration is respecting the constitution to a class of millions to unlawful immigrants? >> i do not, congressman. i do not think that the president's actions are consistent with the system that our framers established. i would point o out that wub of the ironies is the bush administration in particularly the justice department in which i served was often criticized for excessive assertions of executive power and yet when it came to immigration, we held back. we did not act through executive fiat. we did not act through executive order, but rather we deferred to the congress, we respected the congressional role, which confers the power to maim immigration laws on this congress and we held back. >> let me ask you if a president holds himself unconstrained to the constitution, what are the

implications to a republic like ours? >> it can end up with lawlessness. the real problem here, and i said this in my testimony earlier, that under the president's lawyer's interpretation of this executive action, the president could wake up tomorrow morning and said the executive action i took two days ago, i u don't want to do this anymore. and i think that's part of the problem here. if you're not more in the constitution, the danger to the republic is the separation of powers becomes meaningless, which is our entire constitutional framework. >> mr. chairman, i would suggest to you that the issue that we're dealing with here in the central consideration is one of profound significance and if we allow the rule of law to be jet son, which it appears we may be on that road, then i'm afraid we would owe great britain a pretty

profound apology for that unplesness we had wem them a few centuries back. >> would the gentleman yield? >> i yield. >> i started by acknowledging that there are differences of opinion, but i think we can work through this. and i'd only say to the je e man, an executive order is limited by the president's opinion. it is temporary. the president knows that. i think that's a bogus argument. what we can do is we can pass with you immigration law by this congress. i hope we'll do that. . with that, i yield back. >> thank you, mr. chairman. >> the chair recognizes mr. johnson. >> it should serve as no surprise to anybody in this room that the first hearing of this committee that we would have after our return from our august break -- excuse me, the break after thanksgiving.

we have had so many breaks, our first hearing we only have two more weeks to go and this is a messaging hearing as opposed to a substantiative oversight hearing of presidential action. this is just another example of the strategy that republicans have employed since the very moment that president obama was sworn into office. and that is to obstruct everything that the president sets out to do. now they won't give the president credit for being the deporter in chief. i mean, he has deported under his administration more people than any president in history. do you think you would ever hear a republican give him praise for that? no, they will find something to

obstruct that process, so it doesn't matter what it is, it's just we're going to say no to it. then you get a group of lawyers together. my wife u is a lawyer, by the way. we have been married for 34 years. we have been lawyers the whole time. and we sit down whatever i say, she's going to take issue with from a legal perspective. any legal issue that e we start discussing, she's automatically going to take the opposite side and she's going to argument it earnestly and convincingly and you three along with the fourth gentleman here have done the same thing. and i believe that you feel earnest about the topic here today. but i also know that your lawyers and lawyers can argue

either side of an issue and do so compellingly and so my hat is off to you because all three of you are all topnotch lawyers, litigators, and that's what lawyers do. and lawyers also take abstract principles of law, apply them to the facts that a client will present to you and then you will give the client the options. you won't select the option for the client. you won't direct the client to do this, but you'll give the client a range of options and the client will decide for him r or herself which option to take. then if you want to retain that client because that client pays well, you're going to go to court and you're going to argue for whatever position that

client decided upon. and you're going to do so very earnestly and you're going to do it convincingly and you may be fortunate enough to win the case and that's what lawyers do and that's what you all are doing. and that's what i used to do. i still do it when i argue with my wife, but this, ladies and gentlemen, is not a courtroom. this is a legislative chamber. and our power as a legislature comes out of article 1 of our constitution. so we're sitting here talking about article 2 and there's not one thing that us legislators here with article one power can do about article 2 power other than to sue the president. and we don't have it to have this hearing to do that. we don't even have to have a

hearing for the republicans to decide that they are going to impeach the president. or that we're beginnigoing to f lawsuit on him. or we're going to prosecute him. we don't need that. so what this body is is doing is actually wasting time when we could be passing comprehensive immigration reform just like the senate did almost two years ago. and then we're refusing to do our obligation to the people that they elected us to do. this is the most do nothingest congress in the history of mankind. and we're doing nothing today other than what we have always done in this congress under republican leadership and that is to say no, obstruct the president. so i don't have any questions. i think each one of you all have argued your positions admirably and if i were the judge, i would

be deciding this case -- my ruling would go in favor of the minority, the underdog. >> the gentleman's time has expired. the chair now recognizes the congressman. >> i thank the gentleman. among many limitations in life is my inability to glean other people oes motives or read their minds. i could have sworn in response to a question you suggested race was the basis for why we may have this constitutional perspective. did i understand you correctly? >> i believe i was responding to the question about is there an explanation about why -- >> let me offer another explanation to you. not a single republican who is here right now ever served under a republican president. not one. so i hope i do live long enough to hold a republican president to the exact same standard that

i'm holding this one, but for you to run to race as the explanation for holding the position we do. harry reid had a very different opinion and none of us awe kiezed him. for that matter, senator obama had a different perspective -- and nobody run to race as an explanation for that. i would cautious for you to be careful when you try to import motives to people. with that, what are the limits of discretion? >> among the limits of discretion is that the president must comply with existing statutes such as the appropriations. so the president can't simply stop deporting everybody. in fact, what they have done here is they have listed new priorities. >> so e he can't stop deporting everybody. what are the limits? so as long as he deports one

person, that's a proper exercise of discretion? >> no, under the current appropriations -- >> i'm not talking about appropriations. i'm talking about the constitutional doctrine of discretion. . if you marry up, you don't have to enforce it. if they do break it, you can pardon them for it. >> we should take two pieces. one is you've got the take care clause, which says that the president must take care to enforce the law -- >> your answer is much more complex than my question. what are the limits? >> the limits are that the president must enforce the laws based on statute. so one is -- >> i thought he just announced he wasn't going. to do that. that he was carving out categories and exceptions. >> he is not saying he's not

going to enforce the law whatsoever o. he's saying he's creating a program by which individuals can come forward if they meet certain criteria and they will be held accountable to apply, pay a fee, pass a criminal background check. >> that's not the current law. >> that is what is possible under. deferred action. that's what he has developed. >> i want to talk to you about that background check. and i want to get to the policy a little bit. can you tell me what a nonserious criminal is? because when i look at the white house talking points, they are interested in serious criminals. so tell me what a nonserious criminal is. >> it could include somebody, for example, who has been detained for shoplifting. let's say a 22-year-old who takes lipstick and that's a misdemeanor. >> so just misdemeanors, nonserious criminal refers to misdemeanor convictions?

>> there are certain misdemeanors considered serious under the recent memos. . >> how about domestic violence? how many can you have and still remain? >> i believe domestic violence is considered a serious crime. >> it wasn't under the comprehensive senate immigration bill, which i have heard lots and lots of my colleagues embrace. i think you have three convictions and still remain on the path to something under the senate version. how about dui? >> i believe dui completely disqualifies you as well. >> a single conviction is considered a serious criminal? even though it's a misdemeanor? >> that's my understanding. >> where can i go to find out if that's correct or not. it wasn't on the white house talking points. they talked about gang members, but i'm not aware of a federal crime for being a member of a gang. i know it's a sentence iing enhancement. >> that is some of the concerns

that some advocates have. if you are being considered a gang member because you live in a certain zip code or is it b e based -- >> i understand your kern is that it might catch too many. mine is the opposite. it won't catch the right people so it's not a crime to be a member of a gang. you have to commit another offense so how are you going to determine who the gang members are? >> there are gang databases that exist. >> if you're in a gang database, will you be deported? >> e we don't have enough information from the administration. >> i have the talking points. gang members are going to be deported. >> they will be issuing guidelines. >> who is they? >> the administration, the white house, the department of homeland security. >> thank you, mr. chairman. >> chair recognizes. >> i want to address this claim that president reagan and bush only did a deferred action as cleanup measure for laws that

were already agreed upon by congress. however, isn't it true that congress actually considered whether the spouses and children of persons who obtain legal status granted special protection under the law and explicitly chose not to do so? and that both president reagan and bush chose to expand this law any way with deferred action and work authorization? >> yes, congresswoman, and thank you for your leadership on the power act. yes, absolutely. the big difference between what presidents reagan and bush sr. did versus what president obama has done, they are using existing statutes to provide -- however, both under irca the congress considered and rejected the fact that children and spou spouses who didn't meet certain

criteria would not be eligible and after it was passed, there were a number of amendments that were introduced at different points. the family fairness act, that failed, one was with the closure failed. and on october 7th of '87 the late senator save key introduced an amendment specifically to amend the immigration. act to waive the residence requirement under the legalization program for spouses and children of qualified illegal aliens and that was defeated. despite the fact that those attempts by congress, to address this issue presidents reagan and bush sr. decided this was unfair to deport the children and spouses of people who were legalize ued under irca and they recognized they had legal authority to exercise that discretion and provide voluntary departure for those individuals and work out the authorization as well. >> so both presidents bush and reagan acted in contrast to

congress, not in conjunction with congress? >> correct, they acted against congressional will and exercised their legal authority, which was well established and continues to be well established today. >> it's also been said repeatedly today that this deferred action is unfair because the beneficiaries would jump in line before millions of other who is are waiting in line. why is this incorrect? >> so unfortunately, again, this is incorrect because this is a lot of misinformation about what the deferred action program is. people are not getting on to any path to citizenship. they are not becoming law school permanent residents. they are simply getting a temporary reprieve from deportation and will be able to work because the regulations allow them to get work authorization if they get deferred action. so we still have a need and as congressman johnson was saying a few minutes ago, there's a need for reform to address the needs of the individuals who are waiting in line.

nothing that the president has done changes in any way that need for immigration reform. and my understanding is hr-15 is still pending in congress. there's still a few weeks left. i have been comforted by the comments people made about the support for immigration reform. i would urge every single one of you to use the days to pass hr-15. >> so it's been also said repeatedly today that this deferred action creates a class of individuals who are considered for deferral of deportation a blanket, that this is a blanket nonenforcement program. is this a blanket nonenforcement program. and has there been denials of the applications? can you tell me how many of them there have been? i have read that it's 1,377 that have been denied.

>> this is not a blanket program. the program that's been existence for the last two years is based on individual adjudications. so individual path that they meet all the criteria and i must say to you too, we have held large clinics where young immigrants have come with reams, volumes and volume e continuing residence. everything from report cards to vaccination records, certificates from the school. they have come forward with a lot of evident evidence. they have been able to meet the criteria required. there are many who have been denied and most recently with the renewal program we have seen an increase in rejections of applications, which we continually raise to the administration to understand the reasons for those rejections.

>> i wanted to make a unanimous consent request. >> should we just do a blanket unanimous consent? please, go ahead. >> my good friend the chairman of the subcommittee had a number o of questions about eligibility for the deferred action program which is specified in the memorandum dated november 20th. those who are priorities for removal which includes the specified in that memo and i'd like to since there were questions about that put this mm moe in the record so they understand who is eligible and who is not eligible. >> without objection. the chair recognizes congressman labrador. >> i'd like to join my good friend from south carolina and advise to you and all the members of this committee, i have a question for you. when the congress went after

president clinton and -- were they racist when they were against his policies? >> i don't recall -- i'm not sure what you're referring to. >> any time the congress objected. where they being racist? >> it's out of context, but your point is well taken. >> when president clinton was impeached was it because the members of koj were being racist. >> no. >> when the democrats filed articles of impeachment against president bush, was it because they were being racist? >> no, congressman. >> it was because they disagreed with his policies and they thought he had exceeded his authority as president of the united states and they thought he had committed impeachable offenses. i disagreed with them and that's why no one on this side has filed articles of impeachment against this president.

>> yet. >> i think you guys might. but i don't think any republican wants to do that. they might try, but no one is talking about impeachment. we disagree with his policies. we disagree with everything he has on immigration. but to assert here in a hearing, in an open hearing under oath that it might be racism why we're disagreeing with the president's policy is beyond the pale. let's talk about the facts. you did not answer the question about what the limit to the president's authority might be under deferred adjudication. is there any limits? >> the limits to his authority have to do with the statutory limitations. >> you said he created a program. there is no statutory program that allows him to do this program. you said it in your own

testimony that he created a program that now we're using, according to you, individualized adjudication. >> under the homeland security act, the congress has charged the executive branch and the secretary of the department of homeland security. >> you're going to argue it's because we don't have enough propositions. if homeland security department started deporting more people than they have funds for, can't they come to congress and ask for more money to start deporting people? >> they could definitely do that. that was not the argument i was going to make. under the homeland security act, there are identified priorities who is considered a high level priority. >> they don't get to set those priorities. the congress has set those prioriti priorities. for them. they have said that there's a certain class of people that are here unlawfully and without document and they should be deported. it's not the department of homeland security that gets to

set those premises. >> so it's a combination of the two, congressman. so under code section 202 subsection 5, the statute is very clear. the secretary of home labd security should be responsible for the following. establishing national immigration enforcement policies and priorities. >> but those priorities are in memos, not in statutes. isn't that correct? >> the statute says the department gets to decide what those priorities are, and. secondly, as any executive agency then gets to decide based on resources and policy priorities and what is r considered public policy. they determine a combination of it's the same -- >> so if if i run for president and i decide i don't like any epa regulations. i don't like the epa and i don't want to enforce the regulations. can i under discretion decide not to enforce the rules? >> you could exempt the legal

limitation is if there is a statute that requires you -- requires the epa to specifically enforce certain parts of it. >> if i don't like tax laws, can i decide i don't want to enforce the tax laws? >> that is not what this administration is doing. >> that's exactly what this administration is doing. i was an immigration lawyer. you can do an individualized adjudication, and i had many clients who i asked for. and they have a set of facts that makes them eligible for deferred adjudication and it was because there was nothing in the law that allowed them to stay in the united states legally. correct? and i think you have been an immigration lawyer as well. in the end, you ask for an individualized adjudication. not for a whole class of people. you didn't just say i want every one of my clients who has lived

in the united states for five years to have deferred adjudication. >> with all due respect, that's not what the administration is saying. they are saying there's going to be accountability, individuals who meet certain criteria -- >> the gentleman's time is expired. the chair now recognizes congressman deutsche. >> thank you. would you like to finish your answer? >> thank you. they are saying here's the low level priorities. this is the criteria. individuals still need to come forward individually and only at that point are they considered for deferred action. every mother and father come together a document. >> i wanted to take a moment. we're discussing president obama's so-called executive overreach, but i fear that the characterization makes light of what is a very sad reality that law enforcement agencies face every day.

which is they must pick and choose which crimes. . they choose where to focus their resources. a state prosecutor makes choices. perhaps they direct staff to focus more on domestic violence and less on marijuana. doj makes choices, they have to determine where to focus resources. officials ask corruption and banking sector. in fact, right on down to the most. base. ic level of law enforcement, they exercise discretion when enforcing our laws. they charge others with reckless dri driving. when it comes to immigration, there's no way for the department of homeland security to deport more than 11 million undocumented immigrants in the united states. f even if that's the goal in congress. it was made clear that democracy don't have mass deportations. so in an era of limited

resources, the administration is articulating something law enforcement offices do every day. the fbi, cia, state prosecutors, all the way down to city cops. . how else can immigration enforcement officials exercise discretion and prioritize which undocumented immigrants we search for rounded up, detained, deported. the president's executives orders on immigration made clear that doj should direct their resources for deporting those undocumented immigrants that commit serious felonies. this prioritization based on available funding sources will ensure that undocumented immigrants who pose a serious risk to the safety of our communities will be deported while those who reside in the u.s. for many years remain. beatrice is living in the united states for 22 years. she and her four children live

in florida. a trained teacher in ms. speaker, she avoided fear of deportation and making a living by selling fishing nets. i'd ask consent to submit this family into the record. >> without jox. >> exercising discretion for laws should ensure that law enforcement resources are used in a fiscally prudent manner and prevents us from unnecessarily taking people away from their families and stowing them in expensive detention centers, which is the last point i'd like to touch on.

here's the problem. for more than a decade, this congress has required in the department of homeland security appropriations bill that immigration and customs enforcement maintained an average daily detention population. this required detention polllation, the detention bed main date, increased to 34,000 people. it is an inprecedented restriction in law enforcement, costly financially, takes a significant toll on families living in our communities. congress requires that 34,000 people be kept in detention facilities and provides more than $2 billion a year to hold undocumented immigrants in e detention facilities. that's $5.5 million a day. it costs $159 to hold a person in detention. decreasing our nation's costly detention population could free up the funds that i.c.e. could direct towards other responsibilities. the detention bed mandate is unprecedented. no other law enforcement agency

has quota on the number of people they must keep in jail. none of them. providing i.c.e. with discretion to fill the beds based ob need and not a number imposed by congress would be consistent with the best practices of law enforcement to satisfy the daily bed quota, officials are fortsed to find and remove undocumented immigrants from families even if they committed no crime or pose no flight risk and many undocumented immigrants have been living in the u.s. for years and are productive members of our communities. removing them from their families to satisfy the bed mandate creates an enormous toll on our families. mr. chairman, as we go through the rest of this discussion, let's bear in mind that this congress has some things we can do. we can pass immigration reform and i'm heartened to hear so many talk about the need to do so or seemingly their willingness to do so. it's been so hard to have a vote. let's also remember we should stop taking away the discretion of law enforcement. >> the gentleman's time has

expired. . the chair recognizes. >> thank you very much, mr. chairman. we have already seen what happens when the mim grags telegraphs what they are and aren't going to do with respect to enforcing our immigration laws and that's a crisis on the southwest border. i'm a south texas representative. last summer i was down there and witnessed first hand the problems caused by a bunch of children, in some cases completely unaccompanied, crossing the border based on a mistaken belief that if they got here, they are going to get to stay. we set the policies as a date certain in there, but the dates tend to slip and we're telegraphing we don't have a serious intent to ens for our immigration laws. . not only is this damaging to the balance of power between congress and the white house, they are also going to damage border security and open us up to a similar crisis in the

future. and i want to ask if you think this action is going to cause more people to try to cross the border illegally. >> no, congressman, for two reasons. the deferred action program that the administration announced said that it only covers individuals who have continuously resided in the united states since january 1st of 2010. so for any individual who comes tomorrow or today -- >> didn't we under reagan say we were only going to grant illegal status to those folks here on a certain date and here we're doing something similar. it seems we're wasting our time. . do you think we're going to see more people coming in attempting to cross the border illegally as a result of this policy? >> i think we absolutely will. i think the administration's policies are followed very closely outside the united states, and i think we saw that with the episode that you referred to a minute ago. and i think there also as you

illuded to, there's been a sense of mission creep. it's been a one-way ratchet in which the administrations say we'll provide limited relief and guess which way that relief gradually goes. >> it also frustrates me that the president's action is going to make it more difficult for congress to find a path forward on both securing the border and dealing with immigration reform. we've got issues with high-tech workers. we have issues with agricultural workers. we have a ton of issues that we need to deal with with immigration. and it seems like the president is driving a wedge between the white house and congress in doing this. my understanding you worked with the bush administration on immigration reform. from your work trying to pass immigration reform, is this going to damage the prospects of congress acting? >> to say the least. if the president asserts the

power, in my view unconstitutionally, to act unilaterally, it's basically saying to congress, good riddance. i don't need you. regardless of whether you do or don't pass a law, i'm going to make immigration law myself. you are the judges of this, but from my perspective it's hard to see how this would enhance the likelihood of cooperation from congress. >> she's argued her broad interpretation of discretion. do you believe this broad of interpretation -- does that leave us anything or does this become an orphan clause in the constitution that has no meaning if we take this broad of a definition? >> it's what the court said that when you have no enforcement on such a broad base scale that you are, in essence, not enforcing the existing law. i don't know what is so confusing. a lot of you have been

prosecutors. i was a government lawyer. >> i learned it in law school. you don't arrest somebody for speeding to the hospital. >> i was a tax lawyer for treasury and we had cases and sometimes we'd say based on resources, we're not going to do that particular case. but we didn't say every case involving that particular industry we're not going to prosecute. that would be suspending the enforcement of the law. >> he had one other question. >> were you working in the white house with the white house on june 6th of 2007? >> yes, i was. >> do you remember what happened in the senate, because i'm tired of hearing that president obama has been working so long for immigration reform, do you remember what happened in the senate which then senator obama decided to vote for poison pill amendments that killed the immigration bill that you guys were working? >> it was immensely frustrating for many of us who had labored for months, in some cases years,

to affect immigration reform. >> president obama who at the time was a senator, had gone to the white house and looked at george bush and said he would work for immigration reform and he went to the floor and killed immigration reform and promised the american people the first thing he was going to do as president was immigration reform. a house and a senate and did absolutely u nothing. this has always been a political issue for this president. it's never been a policy issue. thank you very much. >> congressman gutierrez is recognized. >> thank you, mr. chairman. the segue to prosecutorial discretion, i'm going to sit up here. i didn't have the good fortune to go to law school. i never met james madison or ben franklin or george washington. i read about them. and sometimes the lawyers kind

of take us down memory lanes like they are your first cousins once removed. i admit not having gone to law school, so i'm a little not as prepared as the gentleman miepgt be on the questions of law. but i supported and worked harder than anyone here, at least as hard as or harder than anyone in working with republicans. and they keep inviting me. they said it will be next week. here's our principles. then they go, just kidding. i really didn't mean it. they keep testing us and teasing us about immigration reform. we're going to do it. we're just not ready right now. the fact is that the speaker called the president of the united states and said despite all your great efforts, mr. president and mine, we're not going to call a vote on immigration reform so let's just put aside the fallacy that somehow this is disruptive to a system. it's almost as though you're coming here to tell us, oh, we are on the pinnacle of success and had the president not acted we'd all be convened here to do

comprehensive immigration reform. the fact is that's just not reality. let's deal with reality. the fact is that when you and i and others were working in the senate to pass the bill, we passed a bill here, that was immigration reform in the house of representatives. that criminalized every priest, every teacher, every doctor. that was the response to the senate bill. so let's get it very, very clear here. every time we have sat at the table and said, look, tell us what it's going to take, they refuse to act. 23 months into the year and we have not seen any legislation taken from this committee to the house floor that isn't taking 800,000 young people and making them illegals once again in the words of my colleagues. so not having met any of them, i want to say i met a few other people that i had the privilege and honor of meeting and working with so i can't go back 300

years when you guys suggested prosecutorial discretion was established in the law. i can go back to november 4th of 1999 and here it is. i'm going to try to read a little bit of it. it says, there has been widespread agreement that some deportation unfair hardship, if the facts substantiate the presentations that have been made to us, we must ask why the ins pursued removal in such cases when so many other more serious cases existed. we write to you because we believe people you know that discretion to alleviate some of the hardships. the principle of prosecutorial discretion is well established. they have taken the position of well grounded in case law that ins has discretion in the initiation and termination of

removal proceedings. furthermore, they have employed this discretion. two cases called for the exercise of such discretion. over the past year many members of koj have urged to develop guidelines for the use of prosecutorial discretion. guidelines for the use. let me just suggest to you. i never met george washington. i never met ben franklin. you guys like taking us down memory lane with the founders. but i'll tell you what. i did meet henry hyde. i did meet lamar smith. i did meet mr. mccullough. i met all of these gentleman that have signed this. let me just say that others that have signed this are friendly to immigrant policy kind of members of congress. i think we can suggest that. and yet what did they say, they

wrote the attorney general and the ins commissioner and said prepare guidelines. let me just suggest to you. that i idaho has 1.6 million people. we deport 400,000 a year. it would take -- if we spent our life in idaho, it would take us the next four years. we're not going to deport ourselves out of the issue of immigration reform. we're going to have to find a solution. and instead of here arguing as though we're the salespeople court and you guys are solicitor generals telling us what is constitutional and not constitutional, we should roll up our sleeves and begin to do immigration problem because we have not put one more person on the border to secure our border, nor will we help one more family. . i would just end with this. mr. chairman, you know, i didn't go to law school, but it seems to me that justice is about compassion too. it's about fairness. it's about looking and weighing the equities that people have.

4 million american citizen children we should take into consideration. because guess what, tonight my grandson is going to be taken and my daughter is going to go to a school and check out his report card and take him to the l library and be able to help him with his homework. she's going to be able to do a lot of things. take him to soccer. there's millions of undocumented immigrants that can't do that for their american citizen children. let's stop. nothing has been resolved here. let's get to work. thank you for your indulgence and generosity. >> thank you, mr. chairman. probably the one part i would agree with with my friend just now is the fact that amazingly enough after a wonderful speech that everything was supposed to be solved a couple weeks ago because the president acted and we're far from that. this is concerning on many levels and the problem that i

have is the fact that this has gotten mixed up into immigration. we're using immigration and we're using the stories of hardships. i can understand that. but the problem is here is a fundamental take the issue away. remove the issue. remove immigration. remove drug enforcement. just go back to the simple idea of what the structure of government is. that's the problem that i'm having here. and also as a reminder, i heard it mentioned across the aisle that we had passed bills, they had never moved out of the committee. i'm not sure why my friends were concerned. they didn't vote for any of them in this committee. they wouldn't have worried about them on the floor of the house. and as my friend from idaho mentioned just a few moments ago, the reason most of us believed this is a political

issue r for this president is because when he chose to overhaul the health care system, when he chose to go after the big banks, when he chose a lot of other priorities, you know what he didn't choose as a priority? he did not choose illegal immigrants. he did not choose immigrant communities. he did not. so we can complain all we want about differences of opinion and what did and not move. the issue comes as now i can do it. i'm in my last term and i don't like what congress has done. my question is this. i'm sitting here pondering this because i did sit through law school and i'm proud that i did sit through law school and i haven't met george washington either. but the books and stories have told me a lot about how this history has founded and the folks who have strooied here and rule of law matters. if you come from a country where rule of law doesn't matter, what does it say when we're going to avoid the rule of law in this country? take immigration off of it. just look at the balance of power. let me just ask the question. you used the term policy change.

you use it regularly. >> under the what the department of homeland security has done has said in the past we are deporting parents of u.s. citizen children. >> as an executive order policy change? >> prosecutorial discretion. >> policy change to not do something would be captured under prosecutorial discretion? >> the president has not issued an executive order. he issued executive action. these are directives by the department of homeland security identifying what their policies and priorities are. again, completely consistent with the homeland security act. >> in looking at this, take it away. i know you can't because this is also a cause for you. i get that. take immigration out of in. what is the limit here? and you sort of blew off my

colleagues who said about tax law and other things. you came across that way. tell me why it can't happen. people in this body 50 years ago on different issues would have sat here and said there's no way a president would take a group and do away with it. and even hide it under an outline. why is it not now not conspiracy theory to think any president can use this as precedent? >> so again, i believe that the president is actually following the law, the constitution, statutory, regulatory framework. what the president has done here is the same that previous administrations have done. in the future, taking the immigration issue out, if it were tax law, labor employment laws -- >> why didn't he do it before the election? why didn't he do it six years

ago? he knew it's a political issue. he knew it would cost his party politically. he chose to go after the election. would you say in short answer states have a good argument for standing. >> of the potential plaintiffs, they probably have the best argument. but it's always a difficult task. >> those currently legally u in line and it's taking forever to process their legal applications and now the same are going to have to deal with the deferred action program, would they have standing? >> possibly. >> so they are being hurt. that's another legal term. also in reference to my gentleman from illinois, the letter he stated, minor detail here. wasn't dealing with illegals. he was dealing with legal permanent residents in developing a process for them. he was not dealing with illegals. i yield back. >> the chair recognizes congressman jeffreys. >> thank you, mr. chair. i thank the witnesses for their

presence here today. let me just start here. there are approximately 11 million undocumented immigrants in the country right now. >> that's the number i understand, yes. >> congress appropriates resources to the department of homeland security, correct? >> yes, sir. >> those are used to undertake the deportation of undocumented immigrants, true? >> that's correct. >> now, the department of homeland security does not have the resources based on what congress has allocated to it to deport those 11 million undocumented immigrants. correct? >> that's correct. >> since we have established there's no way that dhs can deport 11 million undocumented immigrants because it does not have the resources to do so, it's got to establish priorities as it relates to deportation, true? >> absolutely correct. >> now, who actually has the

authority to establish those priorities? isn't it the secretary of homeland security and therefore, the president who appoints him? >> the secretary of homeland security is authorized on a case by case basis. it's markedly different from a group exemption. >> first of all, this is not a group exemption. i think that's just been a blanket misrepresentation. i think many of my colleagues have corrected it. but there's at least five factors that individuals will have to prove, right? documentation will be required to demonstrate that. you can't just show up and make that representation. >> that puthous you in the clas. >> you have to demonstrate that. birth certificate, passport, documentation, continuing presence, it's going to require documentation, four, not an enforcement of priority, and five you have to pass a criminal

background check. those are all individual factors that will be assessed by the department of homeland security to determine eligibility, correct? >> to determine if you're eligible for the class, that does not constitute an individual determination. >> we disagree on that. in terms of -- sir? you're answering questions. we appreciate whatever authority you're bringing to this discussion, but you're not the definitive authority. what the supreme court has said, and let's touch on that, the arizona v. united states case has been brought up. . are you familiar with that case? >> yes, sir. >> do you believe this case in any way contributes to the debate as to whether the president has discretion to defer deportation? >> the conclusion of the supreme court was that the federal government has the authority and the states cannot override immigration authority that's federally enunciated. >> justice kennedy stated in the

majority opinion 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 aum. correct? >> yes. >> that's what justice kennedy stated. we have already established the resources don't exist for the department of homeland security to remove all 11 million undocumented immigrants. true? >> yes. >> so immigration officials, it seems to me, consistent with the supreme court decision which was written in o 2012, on immigration not on fda matters, not on other collateral matters, on immigration, establishes clearly that the department of homeland security has the ability to make priority determinations related to deportation. >> over a state determination. it involved the constitutionality. this is a different situation to

a situation where there's going to be a blanket creation of a class that's now protected outside of congressional authority. the answer to your question is pass a law. >> i agree with that. the president agrees with that. since president eisenhower in 1956, 39 occasions there's been executive action related to deferred enforcement connection with immigration. correct? >> yes. >> 39 occasions. it happened under eisenhower and kennedy related o to approximately 900,000 cubans. it happened under ford with approximately 200,000 vietnamese. it happened under president reagan as it relates to 200,000 nicaraguaens. it happened under george bush, as it relates to lye beeiberial. it and with respect to 1.5 million undocumented immigrants.

correct? >> yes. >> but you don't believe this president has the authority? >> i'm not -- i've stated it clearly i thought that i'm not convinced in all those cases. some were involving foreign policy issues. i stated kinltly i believe that especially related to the situation with presidents bush as well as president reagan that i think it's constitutionally suspect as i think this is as well. >> my time has expired. >> thank you, mr. chairman and thank you for being here in this filibuster style proceeding. you know, you've heard the president, his proclamation and he said that in essence since congress didn't do anything that he had to act. i just want to set the record straight in july we had a bill

to deal with border issues that was viciously fought within our party and there were massive changes and corrections that were made. if we didn't have everybody, we had close to everybody in the republican party vote for the bill, about 10 or 10:30 p.m. on friday night the end of july. so we did pass a boarder bill ad i'm hoping whoever advises the president will be able to tell him that. but they have these pesky fences between us and getting to the president. i've advised the head of our cis and secret service was here testifying recently that since we're told fences don't work on our southern border, we really

need to remove the fences at the white house. if they don't work, they don't work. take down the fences at the white house. but i've been perplexed. the president also said in essence if you've been violating our laws for five years or more, you're our kind of people. we want you here. if you're new at violating the law, you haven't been violating for a full five years, you're not our kind of people. we want long standing lawbreakers. can anybody explain to me why we should have a preference for people that violated the law more than five years as opposed to maybe new lawbreakers? what's the vachk of having a long standing lawbreaker? >> the rational is individuals who have been here for a long time have u.s. citizen children, paying taxes, property taxes, many of them are small business owners, they are contributing to

our economy in my ways. they are invested in our country. they want to be americans. but there aren't any legal channels to do so. because of the conversation >> my time is short and i'm still looking for the rational

for saying people who violated the law more than five years or more are our kind of people. there is a long standing law in the uk that until you have paid into the british system for five years you are not entitled to any british benefits at all. >> there is authority to set things like that.

>> i agree. >> i would like to add that many have been paying to -- paying into our social security system. >> that begs the system, though. there is plenty of evidence like the child tax credit where people are getting much more back than they paid in. since the president thinks he has the constitutional right to do this and he was a constitutional professor in chicago, seems like maybe his students have a legitimate class action for their money back.

>> every executive order is unilateral so the notion that this is somehow not legitimate because it's unilateral is an incorrect argument. that is dictated by the constitution. >> but executive action incorporates what the president

said. >> unauthorized workers trying to support their familyies long ties to the community or a record of distinguished military service. in the context of immigration

set fortd the right of the federal government. and even suggested some factors to consider in the exercise of that discretion. that theens determination as to each of those factors.

you have said in the past that what disturbs you is the scale of this. when you look at scale it's less of a scale than president bush's. it was in the face of clear disapproval of what executive order did. so the basis of your argument have been completely undermined. correct? you go on in prior instances and say the executive was acting in

a new statute consistent with the will of congress. also not true. >> that's what scale means. you're not talking about individually. in terms of the quantity or number of individuals. the point of it is the scale of this is considerably less than the most recent action by president bush.

we spent four or five hours to pontificate about whether this is permissible where it's very clear from every legal scholar that i have read that it is permissible and that there is precedence for it. to express their collective view that the president's actions are well within his legal authority. >> without objection. >> let me ask you because you were in the bush white house. if congress declines to enact a bill that the president wants is there anything in the structure of the constitution that says that because congress refused to act that the president's

vertical power is augmented before he can go around congress? >> no sir. >> that's totally foreign to our system of separated powers. >> that's correct. ? .? can?

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