have not directly spoken to them, but certainly we have had interagency discussions on this. it is important to remember that the clean water rule is a jurisdictional rule. it doesn't result in automatic permit decisions, it says that there are certain waters that need to be protected for drinking water and other reasons and that the permit decisions themselves are what actually will be the result of the impact and the further discussion. >> i think that the rule, as i understand it is presumes to narrow the jurisdiction but the sba office of advocacy concludes it doesn't in fact broaden it. the economic analysis doesn't sync with, i guess your analysis epa and the corps' analysis. when it gets to the issue of the lack of clarity, which the courts have stated in the definition of what navigable waters is, i understand that should be clarified, but it seems to me as i look at the seven categories in the rule

the definition gets cloudier not more specific in my view. and in fact, you know, if we end somewhere like three out of the seven, that would be clear too, wouldn't it? wouldn't it be just as clear to say navigable waters are waters that are navigable for interstate commerce and -- why wouldn't that be -- >> we have been -- the area that lacks clarity right now is not the issue of navigable waters. the supreme court actually spoke very definitively that navigable waters need to be looked at in a way that isn't the traditional definition. we haven't been looking at navigable waters the same way. it is a recognition that navigable waters in their ability to provide the functions that we look for, are really severely impacted by the waters that flow into them. so the challenge we tried to face in the clean water rule was to take a look at how do we identify those rivers streams tributaries, wetlands that feed into those navigable waters that

we need to understand and protect so that they won't degrade those waters that are so necessary. >> you've just used some new terms, new at least in this rule, that weren't part of the previous one. and i add neighboring, you know, floodplain floodplain. that is adding -- that is adding, not restricting jurisdiction in my view. it looks to me like you're reaching for more power as opposed to further defining it. i'm concerned that's not the role of the epa, but rather the role of congress. >> i appreciate your asking that. i think we are actually looking at that as a way to be clearer and to narrow this. because there is so much uncertainty that there are more case by case decisions being made than need to be made. so we are trying to provide more clarity, but we also know there is a lot of questions in terms of how people are reading the rule, whether we were clear in our intent, and clear in the language, and will work through those issues moving forward so the final rule addresses some of

those uncertainties. >> given the little time i have left, i'll mackke a couple of comments. i hope the ferc technical conferences are going well and you're paying close attention to those. >> jena mccabe, my assistant administrator in the program has attended those. we think they're excellent opportunities for us to understand what the energy world is -- >> i think that type of consultation earlier in the process would have been better. with regard to mr. sarbanes comments about the epa being more in sync with the growing population, if you will, or something to that effect i would just want to state that the absence of congress acting on, say cap and trade, or choosing to not pass cap and trade should not be viewed as neutrality by the people's house or by the people's representatives, and somehow a license therefore to go ahead and catch up to the public if you will. because if public support is increasing for -- whether climate action plan or clean power rule i would submit to

you that the public is well ahead of the epa and more in line with the congress with regard to, for example, the keystone xl pipeline, which, you know so far the only agency that said anything remotely negative has been the epa and, by the way wasn't all that negative referring to the -- that we have to now consider the lower price of oil but i would just want to remind people that the price of oil was roughly what it is today, when they pipeline. i'm over time. >> this time, we recognize the gentleman from mississippi, mr. harper, for five minute s. >> thank you, mr. chairman thank you, miss mccarthy, for being here. i think we're near the end. that's a good thing. >> that's a thank you too. >> yes, yes. if i could talk to you specifically, we have got -- we have a number of industries a number of groups in my home state of mississippi that, you know, are greatly impacted by

rules that are promulgated or enforced. and one that i would like to just touch on for a minute would be our wood and pellet heating unit manufacturers. you know it is -- it is something that really impacts us. these are -- usually small businesses that don't have a lot of room in their budget for r&d costs. in addition to testing lab fees and those things. you know, i think with the first stage of this rule that most companies are going to be okay. they can probably get there, but the second stage which i believe is scheduled to be implemented in 2020, that's going to be extremely costly. it sets very low emissions targets that are almost impossible to achieve with the

current technology we have and the resources. so my question is, what budgetary support does the agency plan to provide the manufacturers as part of the goal to deal with the air quality issues that brought forth this? >> well, congressman, i want you to -- want to first say i believe your businesses were engaged in this, but we worked really hard with the small business constituencies on this, and the small business administrators office for advocacy. and we did make substantial changes in the final rule that actually sought to accommodate their interests in making sure that there was -- that there was fewer impacts in terms of existing stoves that are generated and out there for sale, so that they could have additional time to get those sales out. but also to extend the timeline for compliance on these phases. so i apologize, i don't know the specific dates so i can't confirm, but we did make a lot

of changes. i would be interested in hearing from you and working with you to see if they actually address the issues of concern. >> well, we'll make sure we communicate further on that. because i believe it is something that would necessitate some additional discussion and movement and fairness. what do i go back and tell those companies that are now looking at a large either lab testing fees or r&d costs that they don't really have in their budget to be profitable. what do i go back and tell them? >> well there was a -- i think we did a good job trying to make sure that the testing components of these were moderate enough that they didn't impose a significant cost to the manufacturers. but the other thing to recognize, and this is something maybe we can work on together is in the past epa and states and regions have had funds that actually support the distribution of these cleaner stoves. and i know that there is states that will be looking at the

stoves as being opportunities for them to meet some of the air quality standards that they're facing particularly in the particulate matter. if i can provide any opportunity for that dialogue to happen on how we could work together it would be a pleasure for me to do that. >> all right thank you for that offer and i believe we'll follow up on that with you. if i could take just -- i believe the clock hit, i thought i had a little bit of time left maybe a minute and a half? >> go ahead. >> i feel like the shot clock ran out, so but what i would like to do to follow up is on the issue of how much implementing the proposed clean power plan will cost taxpayers, and this is again, specific to my home state of mississippi, and i checked with our mississippi development authority, and they indicated that the minimum incremental capital costs of mississippi to comply with the proposed rule be $14.2 billion.

which will primarily consist of constructing -- generating facilities, not likely to be built unless compelled by federal mandate and the rule will almost certainly cause a premature closure of existing coal plants in mississippi, which would of course, place upward pressure on electricity prices. if the cost to mississippi to implement the clean power plan would be $14.2 billion, would you agree this is too much to ask of mississippi consumers? would epa revise the state's targets? >> we certainly -- our economic analysis didn't indicate that was an amount that would be necessary for mississippi to spend. in fact, i think it may be lower than what we estimated at our lower range for the entire united states. so we should be sitting down and talking through what the options are that we think provided tremendous flexibility for every state to design a very cost effective strategy. >> do you have a figure for mississippi? >> i do not -- i do not believe

we broke it down by individual state, but we can have those conversations with the state about what their underpinnings were that came up with that number because clearly it seems like its order of magnitude is larger than one would expect. >> i think my time expired twice. >> we welcome back mr. scalise, our majority whip and recognize him for five minutes. >> thank you, mr. chairman. i appreciate that. and administrator mccarthy, great to see you back here. thanks for coming to testify about your budget and of course this is part of our oversight rule to go through and obviously look at some of the proposals that will be made by the department throughout the year. i want to talk to you about some of the proposals that not only are being proposed in some of the impacts that we're seeing and how they he might have some devastating impacts, but ask about the others in the past, because as you make proposals you also attach to them what types of impacts it might have

in certain ways, and i want to take for example the mercury and air toxics rule. some other federal agencies like ferc, when they were looking at this, said that plant closures would be much higher than the epa estimates were going to be. it seemed to me when epa got this information, you scoffed at it. but in retrospect now that we can look back and see the administration's own data concedes the max rule will shutter ten times more the amount of the electricity generation than you all originally anticipated. how do you respond to something like that when even other agencies within the obama administration were saying, what you're proposing would be devastating to electricity. >> well we -- >> even more than what we're anticipating and it terms out you were way off, ten times off on your estimates. >> actually, sir i'm not necessarily agreeing that the mercury and air toxic standard was the precipitator for all of the closures that we are seeing.

>> but ferc made that warning too. i mean, are you disputing what ferc claimed? >> there were concerns raised about closures. there were concerns raised about reliability and cost, which is why we work with doe and ferc to address the issues together. and frankly none of those concerns have proven to be a reality. >> are you disputing that they had the shutterings of electricity generation, the ten times increase in the shuttering of electricity generation that occurred since the max rule? are you disputing that? >> i said there were a number of closures. whether they were attributable to the max rule or the simple fact that the energy world is transitioning is the question i'm raising. >> people need more electricity and then you come up with a rule that other agencies said we're going to have devastating impacts, much worse than you anticipated and those things happen and you say, well, it happened, but maybe it wasn't our fault. >> we factored those issues in. >> why would they shutter those plans. >> the shuttering of the plans were a market decision -- >> market decision based on unachievable standards coming out of -- we're seeing this time

and time again. >> the compliance timeline is this april. and we have not received any request, legitimate request to extend that timeline beyond what is already affordable and factored in. >> maybe you're not factoring in enough things. you factored in that the max rule would only have a minor impact on electricity bills and yet midwest future electricity capacity prices have already skyrocketed over 340%, largely due to max. you said it is not going to have an increase in rates and they have a 340% increase in rates in the midwest. you need to go back and look at some of this stuff. i know the president loves talking about global warming and canceling flights across the country due to snow blizzards. and people are trying to heat their homes and these rules are having dramatic impacts. i want you to answer some questions about a study that just came out by the beacon hill institute at suffolk university in boston. i'm not sure if you're familiar with the study that just came

out. definitely with suffolk university. they just came out with an economic impact study on the effects of the new epa rules on the united states. i ask unanimous consent if we can submit this report -- >> without objection. >> in this report, they go through and break down not only national impacts which are devastating, but they go state by state so in my state, of louisiana, the pelican institute for public policy, which looks at a lot of this information, and looks at economic data, they went and broke this down and looked at the report and according to what they have seen, you would have an impact in my state of louisiana alone of an increase in utility rates by 22%. electricity prices would go up 22% by 2030. the state of louisiana alone would lose over 16000 jobs based on these rules. and you just have to ask, i read a quote from kevin cane, the president of the pelican institute, along with these significant costs is worth noting that the increases in

electricity prices would disproportionately affect lower income louisianaens who spent approximately 70%, 7-0, 70% of their after tax income on energy. these costs need to be taken into consideration by state and federal policymakers. closed quote. are you all taking into consideration devastating impacts like this on rules that you're proposing where you increase people's electricity rates? lower income people would be harmed heavily by this by 22% and over 16,000 jobs lost in one state alone. and, of course this is national, the impact this would have. >> i don't know what study you're talking about what rules they're looking at, but i -- >> this is the suffolk university study that looks at the impact of -- >> i'm happy to take a look at it. but i know that congress is actually charged us to do exactly that. to take a look at the costs and benefits in all the economic -- >> i urge you to look at this study. and take -- >> and we have not seen the damage that you're indicating.

we have seen that we -- >> i just -- 340% increase in electricity prices in the midwest alone. it happened. this isn't a study. that happened in the midwest. anyway if you can look at this study -- >> i would be more than happy to. >> and the proposed rules -- i yield back the balance of my time. >> the gentleman's time expired and that concludes -- >> mr. chair? >> yes? >> if i might i would just like to thank the administrator for her presentation today and her dialogue with the committee. but i think there are a number of instances where members had asked the witness questions and then didn't give her the opportunity to respond to that. so i think we should extend the opportunity if she so chooses to respond to any of the those situations today and would also make the plea to the committee that we interact with these witnesses in a much more courteous and substantive style

so we can achieve what we're all hoping to achieve. >> i think most people were pretty courteous today and i do know that there are questions that were submitted that you said you would be getting back to the committee with answers. and if there is some response that you feel like you were not given an opportunity to make i would be happy to give you that opportunity now to respond. >> mr. chairman, first of all, you're always a gentleman, and i appreciate that very much. and i -- the only issue that i didn't get a chance to talk about a little bit more specifically that i wish i would have is the issue that mr. griffith pointed out on this 111-112 issue. and the only thing i would have pointed out is that he was quoting from our defense of the clean air mercury rule. and the reason why we were defending that way is because the conflict occurred in cammer that does not kerroccur in 111-d in our clean power plan because that was about the same source

category, the same pollutant being regulated under two different sections. we do not have that conflict here. so we do not believe that that issue is really going to impact the legal viability of the clean power plan. but i thank you very much for raising this. and for allowing me the honor to testify before you today. >> well, i think one thing that is certain is that courts are unpredictable and we never know precisely how they're going to decide. >> we can all agree on that. >> but we do thank you for being with us today, and taking the time to discuss the fy '16 budge budget budget. that will conclude today. the record will remain open for ten days and we look forward to getting the responses that committed to giving back to the committee. >> thank you. >> thank you. meeting is adjourned.

job numbers for february were released earlier today by the labor department. the unemployment rate falling from 5.7 to 5.5% and 295,000 jobs added last month. in response to those numbers house speaker john boehner said in part, while it is welcome news that more americans found work last month middle class families continue to be left behind by the president's policies. by vetoing the keystone pipeline, the president put his political agenda ahead of the more than 42,000 workers who

would have a shot at a good paying job. it is time for the president to put down the veto pen. in about an hour, president obama takes part in a town hall meeting in columbia south carolina. he'll speak at benedict college, a historically black college founded in 1870. you can see the president's comments live at 2:15 p.m. eastern over on c-span. and tonight at 8:00 eastern, we'll bring you the supreme court oral argument in the case of king versus burwell, dealing with the federal subsidies under the 20 10 health care law. reaction took place outside the supreme court after the case was argued. here's part of that now. hi. my name is pam hurst, i'm here with my husband doug. we are here today on behalf of all of the plaintiffs in king versus burwell.

decisions made in washington directly affect middle class families like ours. we believe it is time that those who have been hurt by washington take a stand. that's why doug joined the case. we never imagined we would end up at the supreme court, but that just shows you how important this case is. not just for us, but for others around the country who are affected by obamacare. there are millions of americans who have lost their plans or their doctors or who like doug and i are forced by the internal revenue service to either buy insurance we don't want r or face a tax penalty. we want americans to have options.

we believe there's a better way to take care of people who need help, but there's no reason to force millions of us to pay tax penalties if we don't join a government program. we let our state and national leaders to write laws. we do not let the irs. we believe preventing the irs from rewriting our health care laws is the right thing to do for our family and our country. this is why we are here. what the internal revenue service has done isn't fair, it isn't right, and it isn't legal. we look forward to the supreme court's decision and hope the court rules to protect our choice and the laws that govern our nation. thank you. >> that was some of the reaction

following wednesday's argument before the supreme court in the case king versus burwell, which looks at the health care law and subsidies provided to those enrolled in federally run exchanges. the oral argument is coming up tonight at 8:00 p.m. eastern on c-span. here are some of our featured programs for this weekend on the c-span networks. on c-span2's book tv, saturday night at 10:00 eastern on afterwards former marine and war correspondent david morris on the history of post traumatic stress disorder that affects over 27 million americans including himself. and sunday night at 8:00, former navy s.e.a.l. sniper scott taylor argues that the obama administration is hurting our national security. and on american history tv on c-span3, the commemoration of bloody sunday, when 50 years ago voters rights advocates began a march from selma to montgomery alabama, and were met with violence by state and local police. on saturday, beginning at noon

eastern, we're live from selma with your phone calls, followed by the commemorative ceremony with president obama and congressman john louis. and then on sunday our live coverage continues with a service from historic brown chapel ame church the starting point for the selma montgomery marches. find our complete television schedule at c-span.org and let us know what you think about the programs you're watching. call us at 202-626-3400. e-mail us at comments@c-span.org or send us a tweet at c-span.org #comments. like us on facebook. follow us on twitter. you would see what we use ed to call when i was a kid a mutt and jeff combination or stick ball set. washington was a large man. 6 foot, very robust terrific

natural athlete. and madison is a skinny little guy. >> this sunday on q&a, historian david o. stewart on founding father james madison and the partnerships he made that aided in the success of our fledgling nation. >> his gift that i write most about is his ability to form remarkable partnerships with really the great people of his era. but it also alludes to his gift to the country of his talents and what he was able to do to help create the first self-sustaining constitutional republic. >> sunday night at 8:00 eastern and pacific on c-span's q&a. the house judiciary committee held a hearing to examine the constitutionality of the president's immigration executive orders. we'll hear testimony from nevada's attorney general as well as legal scholars. this is three hours. >> good morning.

the judiciary committee will come to order and without objection the chair is authorized to declare recesses of the committee at any time. we welcome everyone to this morning's hearing on the unconstitutionality of president obama's executive actions on immigration, and i'll begin by recognizing myself for an opening statement. last november president obama announced one of the biggest constitutional power grabs ever by a president. he declared unilaterally that by his own estimation almost 5 million unlawful aliens would be free from the legal consequences of their lawless actions. not only that, by granting them deferred action he would bestow upon them benefits such as legal presence, work authorization, and access to the social security trust fund and the earned income tax credit. president obama took these actions despite having stated over 20 times in the past that he didn't have the constitutional power to take such steps on his own. as the washington post's own fact checker concluded,

apparently he's changed his mind. the constitution is clear. it is congress' duetty to write our nation's laws, yet president obama admitted that i just took an action to change the law, quote/unquote. the constitution is also clear that once laws are enacted, it is the president's responsibility to enforce them. the constitution requires the president to take care that the laws be faithfully executed. yet the very integrity of our immigration laws is now in question. 26 states believe that president obama's actions would cause them irreparable harm. they challenged his grant of deferred action in federal district court in texas. the court agreed with the states and has granted a temporary injunction halting for the moment the administration's plans. the court stated that the administration is, quote, not just rewriting the laws it is creating them from scratch. president obama has justified

his actions under the guise of prosecutorial discretion. law enforcement agencies do have the inherent power to exercise prosecutorial discretion. the authority as to whether to enforce or not enforce the law against particular individuals. however, telling entire classes of millions of unlawful aliens they face no possibility of being removed is not prosecutorial discretion. it is simply an abdication of the executive branch's responsibility to enforce the laws. the president relies on a memo prepared by his justice department's office of legal council to attempt to justify his actions as constitutional. but that very memo finds that quote, 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 branches end quote. the memo admits that the

executive cannot under the guise of exercising enforcement discretion attempt to effectively rewrite the laws to match its policy preferences. and the memo quotes the supreme court's heckler versus cheney decision in stating that the executive branch cannot, quote, consciously and expressly adopt a general policy that is so extreme as to amount to an abdication of its statutory responsibilities, end quote. the memo, in fact, is an indictment of president obama's actions. the federal court in texas agrees, it found that the grant of deferred action, quote, does not simply constitute inadequate enforcement, the government here is doing nothing to enforce the removal against a class of millions of individuals. and the grant of deferred action does not represent mere inadequacy, it is complete abdication, end quote. and the court points out that president obama's actions go beyond even utter

nonenforcement. he is, in fact granting affirmative benefits to the aliens as i described earlier. in absolutely no way can president obama's action be considered a justifiable use of the administration's powers of prosecutorial discretion. they're a clear violation of his constitutional responsibility to faithfully execute the laws. the president also mistakenly claims that his actions are nothing new. it is true that previous presidents of both parties have provided immigration relief to groups of aliens. however, most often the actions were based on emergencies in foreign countries, therein relying upon the broad constitutional power given to a president to conduct foreign affairs. for example, chinese students were protected from deportation after the tiananmen square massacre of 1989. what about president george h.w. bush's family fairness policy which the white house cites to justify its power grab? this grant of voluntary

departure was, in fact, authorized by the immigration and naturalization act as it existed at the time. without any crisis in a foreign country, to justify his actions, and in granting deferred action without any statutory authorization, president obama has clearly exceeded his constitutional authority. no administration has so abused and misused the power of prosecutorial discretion as has the obama administration. by assuming legislative power, the obama administration is driving full speed ahead to a constitutional crisis, tilting the scales of our three branch government in his favor and threatening to unravel our system of checks and balances. this administration has entered the realm of rewriting the laws when it can't convince congress to change them. the house of representatives has taken decisive action this year to protect the constitution. we have passed a department of homeland security appropriations bill that would defund a series of unconstitutional actions of

the obama administration, including this grant of deferred action. tragically the house passed bill is being filibustered in the senate, even as appropriated funds for the department are set to run out at the end of the week. by not even allowing the bill to be debated those senators who have chosen the path of filibuster and obstruction are threatening dhs' access to funds designed to keep americans safe. they are also denying the american people a fair debate on this vital issue of whether congress needs to take action to protect all our constitutional liberties. we can only hope that they will relent in time. i look forward to today's hearing and the testimony of our witnesses and it is now my pleasure to recognize the ranking member of the committee, the gentleman from michigan, mr. conyers, for his opening statement. >> thank you, chairman and to our witnesses. members of the committee in three days the department of homeland security will run out

of funds. while tens of thousands of federal government workers could be furloughed around 200,000 workers will be forced to come back to work without receiving a paycheck. they will be told to patrol the border conduct investigations and secure our ports but they will not be paid. now, it is fairly well known that the department of homeland security has notoriously low morale. that has been a problem since the department's creation a decade ago. this won't help. but i am sure those workers will do their jobs which is more than i can say for the legislative branch of our federal government. why do i say that? because congress has certain

responsibilities, some are complicated, and some are less complicated, and we failed to live up our responsibilities for years. first, consider the most basic obligation we have. it is our responsibility to pass bills to fund the government. if we don't do our job, the government shuts down. congressional republicans got their wish in october 2013, and shut the government down for more than two weeks. now the majority here has again set on a collision course. this time they will shut down the department of homeland security because they refuse to pass a clean spending bill because they want to block the

administration administration's executive actions on immigration. now, keep in mind that the spending bill we're talking about was negotiated between republicans and democrats in the house and the senate. truth be told there are aspects of that bill that i disagree with. i strongly oppose the detention be mandated and believe that it is wasteful and unjust to include that language in the appropriations bill. but i also understand the importance of funding the department of homeland security and the need to keep our nation safe. second congress is also failing to do its job because it is ultimately our responsibility to fix our broken immigration

system. instead of doing that work, we're holding hearing after hearing to vilify the president for taking important and common sense steps to prioritize the deportation of felons before families. the limited legislation that this committee has considered would make our immigration system even less efficient less humane and less able to meet the needs of american families and businesses. earlier this month, we held two immigration subcommittee hearings on draft language of four deportation only bills that would separate families, strip protection from dreamers,

destroy the agricultural industry into millions of jobs that depend on it. and return vulnerable children to face persecution and violence with no meaningful due process. finally, i want to note that the title of today's hearing demonstrates a glaring disrespect for the office of the presidency and for this institution's responsibility to conduct oversight that is rooted in fact rather than political presumption. the title of today's hearings is the unconstitutionality of obama's executive actions on immigration. not president obama's executive actions, but obama's executive action. since when are we on such

familiar terms with our commander in chief. i cannot recall a previous administration during which members of congress from either side of the aisle, showed such a persistent disrespect for the office of the presidency. the title of this hearing is also interesting because it is a statement, not a question, it just presumes that the administration's actions are unconstitutional. even though no court has found the actions unconstitutional and there is no -- there is strong legal authority and historical precedent supporting these policy decisions. and so in closing, our current immigration system is not working for american families businesses or the economy. these problems require real

legislative solutions. and so i urge our colleagues, my colleagues on this committee to start doing the job that we were sent here to do. mr. chairman i yield back the balance of my time and thank you. >> the chair thanks the gentleman. now my pleasure to recognize the chairman of the judiciary subcommittee on immigration and border security, the gentleman from south carolina mr. gowdy, for his opening statement. >> thank you mr. chairman. mr. chairman the thread that holds the tapestry of our country together is respect for and adherence to the rule of law. the law is the greatest unifying and the greatest equalizing force that we have in our culture. the law is what makes the richest person drive the precise same speed limit as the poorest person. the law is what makes the richest person in this country pay his or her taxes on precisely the same day as the poorest person in this country.

the law, mr. chairman, is symbolize bade blindfolded woman holding a set of scales and a sword. the law is both a shield and a sword and it is the foundation upon which this republic stands. we think so highly of the law mr. chairman that in the oath of citizenship administered to those who pledge allegiance to this country to their new country, it makes six different references to the law. so attempts to undermine the law via executive pheaa regardless of motivation are detrimental to the foundation of a democracy. president obama, after the november midterm elections, i hasten to add, announced one of the largest extra constitutional acts ever by a chief executive. he declared unilaterally almost 5 million undocumented aliens would receive deferred action under some new fangled definition of prosecutorial discretion. moreover, in addition to using prosecutorial discretion as a

license to rewrite the law he also conferred benefits on those same people. you may like the policy, you may wish the policy were the law, but one person does not make law in a republic. if you enjoy a single person making law, you should investigate living in another country. because our framers did not give us, nor have generations of our fellow citizens fought and serve and sacrificed for a single person to make law in a unilateral way. so removing consequences for breaking the law is one thing but bestowing benefits like work authorization and immigration benefits is another. the president himself recognized his own inability to do this, mr. chairman more than 20 separate times, he said he lacked the power what he ultimately did. in 2011 he said this and i quote, the notion that i could just suspend deportations through executive order, that's just not the case. he told us time and time again, mr. chairman, that he was not a

king. his position may have changed. but the constitution has not and that document is clear and it is time tested and it is true and it says that congress passes laws and it is the responsibility of the chief executive to take care that those laws are faithfully enforce. the prosecutorial discretion -- [ inaudible ] a lot of conspiracies. how's that? is that better mr. court reporter? let me see where i was. oh, his position may have changed, but the constitution has not. prosecutorial discretion is real, and constitutionally valid, mr. chairman, but it is not a sinynonym for anarchy.

can not enact a program where by it not only ignores the dictates of congress but actively moves to thwart them. the constitution gives the president a lot of power, mr. chairman. he's the commander in chief he nominates supreme court justices, he can veto legislation for any reason or no reason, he can fail to defend the constitutionality of the law, he has the power of pardon, he has a lot of power, mr. chairman. but what he cannot do is make law by himself. that is the responsibility of the congress. and if this president's unilateral extra constitutional acts are not stopped future presidents, you may rest assured, will expand that power of the executive branch, thereby threatening the constitutional equilibrium. the argument the previous administrations acted outside constitutional boundaries holds no merit with me the fact that

other people made mistakes is not a license for this executive to do the same thing. mr. president, in conclusion we live in a country where process matters. the end does not justify the means, no matter how good the intentions, when a police officer fails to check the right box on an application for a search warrant, the fruits of that search warrant are suppressed. when a police officer, even though he has the right suspect for the right crime but he just fails to include one small part of those prophylactic miranda warnings, what happens, the statement is suppressed. even though you have the right person, even though you have the right crime because we view process over the end. i must say this, and i'll finish, i want to say this to those who benefit from the president's policies. you may be willing to allow the end to justify the means in this case, you may well like the fact that the president has abused prosecutorial discretion, and conferred benefits in an unprecedented way, you may

benefit from the president's failure to enforce the law today, but i'll make you this promise. there will come a day where you will cry out for the enforcement of the law. there will come a day where you will long for the law to be the foundation of this republic. so you be careful what you do with the law today because if you weaken it today you weaken it forever. with that, i would yield back. >> the chair thanks the gentleman for the very cogent remarks and it is now my pleasure to recognize the ranking member of the judiciary subcommittee on immigration and border security, the gentlewoman from california miss lofgen, for her opening statement. >> thank you, mr. chairman. the 113th congress is considered to have been one of the most do nothing congresses in history. the biggest symbol of the republican failure to govern was the unnecessary and irresponsible shutdown that

lasted from october 1st through october 16th. federal employees were furloughed for combined total of 6.6 million days, $2 billion was spent on payroll to these furloughed employees for work they were prevented from doing. the recovering economy took a hit, and millions of americans were denied access to programs and services that they rely on. perhaps it is fitting then that the 113th congress ended with the so-called cromnibus, a spending bill that yet again put us on a path toward a government shutdown. we're only two months into the 14th congress, but it seems like the republican majority and the house and the senate is trying to outdo itself. for the past six weeks, rather than proceed with the dhs funding bill, the democrats and republicans and the house and senate agreed to last year, republican leaders and the house and the senate have insisted that funding be contingent on the series of poison pill immigration riders demanded by

the most extreme members and supported by all but a few. since it was first hatched, many republicans have argued that the president acted unconstitutionally on november 20th when he and the secretary of homeland security announced a series of measures designed to bring a measure of sense to our broken immigration system. we have been told these measures cannot be permitted to take effect. last week, of course, a federal judge issued a preliminary injunction halting two of those measures, the deferred action for parental accountability and the expansion of the deferred action for childhood arrivals program. these efforts are designed to offer temporary protection from deportation to certain parents of u.s. citizens and lawful permanent residents and to dreamers with long ties to our country. the department of justice this week requested a stay of the injunction and noticed an appeal. the matter is in the hands of the federal courts. the branch of the government that the constitution entrusts to settle disputes arising

under the constitution and the laws of the united states. some people including some republicans in the house and the senate have speculated that a court injunction would convince republican leadership to stop holding the spending bill hostage. what we have seen over the past two weeks however is that many republicans are even more determined to take us over a cliff and once more shut down the government. several points are worth noting. first, we continue to hear republicans minimize the impact of a shutdown on national security, by arguing that 85% of dhs employees were deemed essential during the last government shutdown. i just can't understand how we in congress would take comfort at the idea of forcing border patrol agents to secure our borders. coast guard personnel, to patrol the seas and officers and agents to conduct law enforcement investigations and secure detention facilities without receiving their paycheck. it is unconscionable really.

further, it is bizarre that we will defund the e-verify program, stop the immigration enforcement efforts, but at the same time because they are fee supported, the processing of immigration petitions will be unimpeded. so the effort stops immigration enforcement, but does nothing to actually stop the processing of immigration petitions. second, since we know the court has already temporarily halted implementation of dop and daka, expanded daka it is important to remember what other initiatives congressional republicans are trying to block as part of dhs funding. they voted overwhelmingly to eliminate the daka program itself stripping protection from more than 600,000 dream act kids and subjecting them once more to deportation. they voted to prevent dhs from implementing a new enforcement strategy along our southern border and creating three new

law enforcement task forces. they voted to block dhs and dod from working together to ensure that u.s. citizens who wish to enlist in the military would be able to do so notwithstanding immigration they voted to stop dhs from taking important steps to capitalize on the talents of entrepreneurs. to help companies attract and retain highly skilled immigrants and to promote citizenship. just yesterday uscis issued a final rule extending work authorization to the spouses of certain h1b visas. if the appropriations bill passed by the house were to become law, uscis would have been prevented from finalizing that rule. republicans don't talk about the fact they're refusing to fund dhs unless they block each of these efforts. that's what they voted to do. turning today's hearing, i'll note although the title of this

hearing has been mentioned presumes that the president's executive actions are unconstitutional. no court, including the texas district court that issued the preliminary injunction has found that these actions are unconstitutional. in fact a challenge to the original docket program brought by the state of mississippi was thrown out of court for lack of standing. in a challenge to the administration's recent executive actions brought by sheriff joe arpaio was also dismissed for lack of standing. of course, i'm disappointed by the court's ruling. and i know millions of american families across the country are also greatly disappointed. still, i expect that both programs will be upheld as fully within the president's legal authority by appellate courts. i say this because there's ample legal and historical precedent supporting the president's action. the supreme court has long recognized the administration's authority to exercise

prosecutorial discretion when enforcing our immigration laws. and specifically recognized that granting deferred action is a legitimate exercise of that authority. congress directed the secretary of homeland security to establish national enforcement priorities and policies and empowered the secretary to perform acts that quote he deems necessary for carrying out his authority under the immigration and nationality act. every year, congress gives the administration only enough money to apprehend, detain and remove a fraction of the people in this country who are removal and additionally directs the department to prioritize the removal of people with criminal convictions based on the severity of the offense. all of the texas court ruling seems to turn on the fact that recipients may apply for work authorization and social security cards, it fails to acknowledge that the legal authority for granting work authorization and social security cards is entirely

distinct from the authority to grant deferred action and, in fact is stachtorial. all of those authorities long predated doca and congress has never taken action to limit that discretion. the fourth hearing we have held for the president's actions on immigration. the last two hearings -- >> she's now 2 1/2 minutes over. we all exceeded by a minute or so, but i hope -- >> i will, then, conclude by saying the courts will ultimately decide whether the administration's programs can take effect. it is our responsibility to reform the law. and it would be irresponsible of us to shut the government down. we should allow the courts to do their job and we should do our own. i would yield back. >> the chair thanks the gentlewoman. we welcome our distinguished panel today. i'll begin by swearg in the witnesses. do you and each of you solemnly

swear that the testimony you're about to give shall be the truth, whole truth and nothing but the truth so help you god? thank you very much. let the record reflect that all the witnesses responded in the affirmative. currently serves as nevada's 33rd attorney general and is the youngest attorney general in the country prior to becoming attorney general, he was in private practice in las vegas. attorney general served in iraq at base camp victory where his team was in charge of more than 20,000 detainees. he has also served as a special assistant u.s. attorney as an assistant professor of law in the leadership ethics and the law department at the u.s. naval academy, and as a special adviser to the undersecretary of state for arms control and international security. attorney general laxalt graduated from georgetown university and also graduated from georgetown university law center.

the united states supreme court, and the author of unprecedented the constitutional challenge to obamacare, and over a dozen other articles about constitutional law. professor blackman clerked for the honorable danny j. boggs of the u.s. court of appeals for the sixth circuit and for the honorable kim r. gibson of the u.s. district court for the western district of pennsylvania. and ask also the founder and president of the harlan institute. which provides a stylized institute for classrooms and the premier supreme court fantasy league. professor blackman graduated magnum cum laude from george mason university and magnum cum laude from penn state with a b.s. in information sciences and technology.

professor elizabeth price foley is a professor at florida international university college of law where she teaches constitutional law. prior to joining fiu, professor foley was a professor of law at michigan state university college of law and served as a law clerk to the honorable carolyn king of the united states court of appeals for the fifth circuit. professor foley is the author of multiple books on constitutional issues including liberty for all, reclaiming individual privacy in a new era of public morality. and presently serves on the editorial board of the cato supreme court review. professor foley graduated from the university of tennessee, and holds a b.a. of history from emory university. professor steven h.lagamski is the john s. leeman professor at washington university school of law. focusing on u.s. comparative and international immigration.

the founding director -- a center for instruction and research in international and comparative law. he recently returned from a two-year leave of absence serving as chief counsel of u.s. citizenship and immigration services. he is the coauthor of immigration and refugee law and policy which has been a required text at 176 law schools since its inception. the professor graduated first in his class at the university of san diego school of law and clerked for the u.s. court of appeals for the ninth circuit. i ask you each summarize your testimony in five minutes or less to help you stay within that time limit. when the light switches from green to yellow, you have one minute to conclude your testimony, and when the light turns red, that's it, your time is up. please stop.

welcome, you may begin. >> mr. chairman, ranking member, and members of the committee. my name is adam paul laxalt and i'm the attorney general of nevada. on behalf of nevada, i thank you for the opportunity to testify today about the state's lawsuit challenging president obama's unilateral executive action granting deferred action over 4 million people. i represent 26 states that have sued the federal government. it's about the president's attempt to change the law through unconstitutional executive action. like most of us i'm the descendent of immigrants. my ancestors came in search of a better life.

in our nation's history, similar stories have been repeated over and over they are what we have come to know as the american dream. however, it's never been true that in order to sympathize with the plight of immigrants or to believe in the american dream one must reject our constitutional system. fond of using that is a false choice. it is our commitment to the rule of law and the constitution that has drawn people to our shores across generations. the president said the following, i am the president i am not the king. i cannot do these things by myself. there's a limit to the discretion discretion. i can't just make the laws up myself. we can't ignore the law.

these are series of comments the president made before this action. after repeatedly acknowledging his duty to faithfully enforce the immigration laws pass eded direct d his homeland security to do just that and change tlau. to quote the president himself, he said i just took an action to change the law. a coalition of states brought suit in federal court to join the president's unilateral action. requires the president take care that the laws be faithfully

executed. during the korean war, president truman relying on the war unilaterally seized the steel mills. president truman justified unilateral action because congress refused to pass a statute authorizing his action. they were ruled unconstitutional. here the federal judge presiding over this case has observed. not only ignores the dictates of congress, but thwarts them. the case was held unconstitutional by the supreme court. we think president obama's unilateral action here is unconstitutional. second, federal statutory law, namely the administration procedural acts similarly

requires when an agency issues a substantive rule. under unambiguous statutory law the department of homeland security here, i quote judge hanan again is tasked with the duty of removing illegal aliens. congress has provided it shall do this. the word shall certainly deprives the dhs of the right to do something that is clearly contrary to congress' intent. the president's plan that millions of illegally present individuals be granted legal present work authorization eligibility for state and federal benefits cannot be squared with federal law. and therefore we believe violates the procedures act. third, when a federal agency changes the rules like the president has ordered here the administrative procedure act also requires that due process is followed. that is, the agency must give fair notice of the rule change and allow public comment before implementing the change.

everyone agrees that was not done here. so this is the third reason the states are arguing the president's action violates the law. as you all know on february 16th, judge hanan found the states had standing and issued a preliminary injunction in joining the implementation of the program. now, why nevada joined as nevada's chief enforcement officer, nevada law requires i initiate or join litigation wherever necessary to protect and secure the interest of the state. this suit is not about immigration. it is not about politics it is about the rule of law and our constitutional system. this lawsuit transcends policy differences and seeks to prevent legislation from being usurped by executive fiat. upholding our constitutional process is more significant than any policy directive.

that any political party may be pushing at any time. thank you for allowing me to testify about this important issue. >> thank you, general. professor blackman, welcome, i understand your parents are with us today. they're -- >> my dad is wearing the same color tie. you'll know who he is. >> excellent. >> chairman, ranking members and members of the judiciary committee. i'm a constitutional law professor at the south texas college of law in south texas. i'm honored to have an opportunity to testify about why it violates the constitution and poses severe threat to the separation of powers. my brief time i have three points. first, doppa's unprecedented exercise and not constant with previous exercise's preferred action. it violates the presence of duty to take care of the laws faithly executed. an encroaching threat to the separation of powers and the

rule of law that congress not just the courts must take steps to court. the office of legal counsel declared that justify dopa through congressional approval. these claims are false. so first in 1997, deferred action was granted for battered aliens under the violence against women act, vowa. where petition had already been approved but a visa was not immediately available. here the deferred action served as a temporary bridge for those who would soon receive permanent status according to the laws of congress. in 2001, deferred action was granted for aliens under the victims of trafficking and violence protection act. lawful status was immediately available on the other side of the deferral. third, in 2005, deferred action was granted for foreign students

who, unfortunately, lost their visas when gulf coast schools were closed following hurricane katrina. the deferred action bridged the gap and gave the students four months to enroll at another college or university in order to regain the status previously held. fourth, in 2009, deferred action was granted for aliens that were widowed by the untimely death of their spouse before the minimum two-year period. visa petitions have been filed but not completely adjudicated by the government because of administrative delays. again, a way to deferral. it acted as a temporary bridge from one status to another where benefits were construed as immediately arising post deferred action. in contrast with dopa, deferred action served not as a bridge, but as a tunnel to dig under and through the ina. there's no visa, the proverbial pot of gold awaiting other side of this deferred action rainbow. my second point is that dopa violates the presence duty to take care of the laws we faithfully executed. article 2 imposes a duty on the

present unlike any other in the constitution. he shall, must take care of the laws faithly lyfaithfully executed. first, with doca, the blueprint for dopa the administration limited officers to turn discretion to a rubber stamp. this did not reallocate resources to defer the congressional policy but rather an effort to bypass and a transparent one at that. second, because dopa's not consistent congressional policy, according to justice jackson's decision presidential power at its lowest ebb. third, like the mythical phoenix, rose to defeat. the president instituted these policies after congress voted down the legislation he wanted. further, the president repeated over and over and over again that he could not act unilaterally in the precise manner he did. his actions and statements create the case of bad faith and points at a violation of take care clause. third and finally while i support reform, the actions

cannot be sanctioned. i hasten to add, if upheld democrats have much much more to fear from this dangerous precedent. generally, democrats like when the government takes more action and republicans like when the government takes less action. today, democrats may approve of the president's issue to halt deportations, not prosecute marijuana crimes. however, the situation would be very, very different, or decline obamacare altogether. in the words of james madison, federalist number 51 the only way to keep the separation of powers in place is for ambition to counteract ambition. although the courts play an international role to serve as a limited constitution, our republic cannot leave the all-important task of safeguarding freedom to the judiciary. to limit the dangers of nonenforcement, the congress must counteract the president's ambition. towards executive supremacy and the dilution of the powers and

the sovereignty of the people. the rule of law and the constitution itself are destined to fail if the separation of powers turn to parchment barriers when a president deems the law broken. thank you very much and i welcome your questions. >> thank you professor blackman. professor foley, welcome. >> yep. chairman, ranking member, members of the committee. thank you for the opportunity to testify again today. my criticisms with the president's immigration actions are based on legal process and not any particular policy or political results. what shape immigration reform may ultimately take is not my concern as a constitutional scholar. my sole concern is with preserving the constitution and its separation of powers architecture. president obama has repeatedly said that his motivation for taking executive action on immigration is because he wants to fix our broken immigration

system. and what this means is he's trying to fix our immigration law because, of course immigration law is the only immigration system we have. he thinks our immigration law is broken. and he believes that it's broken because it fails to exempt certain categories that he thinks deserve exemption from deportation and to whom he believes the law should grant benefits such as work permits. but fixing a law by unilaterally changing it by granting exemptions remedies and benefits that the law doesn't provide is legislating, or to be more precise, it's amending. and that's a power that is given exclusively to congress by the constitution. the president's duty under the constitution is not to fix a law that he thinks is broken.

but to faithfully execute that law. when a president takes upon himself the power to change a law he doesn't like we have no democracy anymore. we have instead a legislature of one. if congress doesn't oppose president obama's executive orders on immigration, it will be writing its own institutional obituary. when congress fails to express disagreement with executive action, the courts tend to construe that as acquiescence or implied authorization by congress. this is so-called category one from justice jackson's concurrence in the youngstown steel seizure case. so congress needs to be very careful here. it has a institutional responsibility to vigorously protect its turf. president obama's immigration actions are unconstitutional for three separate and distinct reasons that i elaborate in the written statement. first, they alter the status of

certain illegal immigrants, magically transforming them from deportable to not deportable. second, they provide a remedy called deferred action that congress has not explicitly or implicitly authorized for this category of people. third, they confer benefits upon certain illegal immigrants that again, congress has not explicitly or implicitly approved for this population. while any one of these particular reasons will render executive action unconstitutional, when you have all three of them existing as you do here with president obama's executive actions on immigration, it creates sort of a bermuda triangle of unconstitutionality. it has a uniquely powerful gravitational pull that's capable of eviscerating article 1's legislative powers. it's the combination of all three of these aspects of

president obama's executive orders on immigration that make it uniquely dangerous to this institution. i'd like to highlight two points that i elaborate on in the written statement i think bear a little special mention. first, by granting work permits to doca and dopa recipients president obama's immigration orders encourage employers to hire illegal immigrants over lawful residents. and that's because the affordable care act does not allow illegal immigrants to obtain tax credits when they buy qualifying health insurance. so what happens is if you hire more doca and dopa recipients, this lessens the employer's exposure to what's called the employer responsibility tax under the aca. so the more illegal immigrants you hire who are eligible for doca and dopa, then the fewer who are eligible to buy health

insurance, and the fewer who are going to obtain a tax credit for doing so and therefore, the fewer employees that you have on your -- in your workplace who are capable of triggering that employer responsibility tax. now, why do i go into that detail? because it means one important thing. president obama's immigration actions undermine the aca itself by undermining its goal of providing insurance via the workplace. so it's no small irony here that by granting work permits to doca and dopa recipients, president obama is, in fact undermining his own signature legislative achievement. second, doca and dopa recipients are eligible to apply for something called advance parole. that means they can get permission to leave the country and come back relatively quickly. without advance parole if you enter the country illegally and leave, you have to then stay out for a long period of time. usually about three to ten years

before you're allowed to reenter. so once a doca or dopa recipient reenters this country after being advanced paroled, they're considered to be paroled back into the country. and eligible to adjust their legal status. and they can do this as long as they qualify for a visa such as let's say an employer-sponsored visa. what does this mean? it means that at least for some dopa and doca recipients obtaining advance parole will provide a -- >> professor, you've exceeded your time limit, considerably, as well. could you please summarize? >> absolutely. it means they will be able to have a pathway to u.s. citizenship. this is problematic because congress has the sole power to decide who's granted citizenship under the constitution. and even if just one person under doca and dopa is granted advance paroled and applying subsequently for adjustment of status, what we have is a

fundamental use of congress' power over naturalization. thank you and i look forward to your questions. >> thank you professor. professor, welcome. >> thank you very much, mr. chairman. ranking member, and honorable members of this committee for the privilege of testifying at this important hearing. i appreciate the reasonable minds can and do differ about the policy decisions, but i want to respectfully share my opinion that the president's actions are clearly within his legal authority. that's not just my opinion by the way. this past november 135 immigration law professors and scholars joined in a letter expressing their views of these actions are, quote well within legal authority of the executive branch, unquote. we are people who have spent years and in some cases, including mine, decades studying, teaching researching and writing an immigration law and we are very familiar with what the statute allows and what

it forbids. the president has not just one but multiple sources of legal authority for these actions and i've submitted a detailed written statement that documents each of them. i also identify there every legal objection i could think of that the president's critics have offered. and i've explained why in my view none of them ultimately withstand scrutiny. with limited time, i'll hit a few key points and refer you, please to the written statement. deferred action has been standard agency practice for many decades. and it's been expressly recognized by congress in several provisions and in many court decisions. further more every lawyer knows that statutes are not the only source of law. the most explicit legal authority for deferred action, but not the only authority is in the formal agency regulations which have authorized it since the earliest days of the reagan administration. these regulations, by the way, were adopted through notice and comment procedures, and they do have the force of law. none of these laws, not one of them says or remotely implies

it is illegal when the number of recipients is large. the most vocal critics have misunderstood what deferred action is. they've confused deferred action itself with certain things that you can apply for if you get deferred action. but deferred action itself is just one form of prosecutorial discretion. it's a decision not to prioritize a person for removal at least for the moment. and the only thing affirmative about it is that the agency is giving the person a piece of paper, letting them know that is the case. every immigration scholar and practitioner knows that deferred action can be revoked at any time for any reason and the government can bring removal proceedings any time. contrary to what my new friend professor foley has said, there is nothing in any law that says this makes a person who was deportable not deportable or gives them some kind of status. that's simply not true. it's also true that existing laws allow deferred action recipients to apply for certain other things including work permits. and if they're granted, social

security cards. but the executive actions don't touch any of those laws. so my feeling is if you object to them, then by all means, argue for challenging them but there's nothing wrong with deferred action itself or this particular use of it. importantly also applications. >> can we ask the witness to speak into the microphone? >> sure. >> doca and dopa applications do not create binding rules or create substantive rights or statuses. the secretary's memo says this explicitly. they are discretionary both on paper and after practice. and i hope there's a chance to expand on that subject during the question period. and finally, there have been some mellow dramatic claims that if these are legal then why there must not be any limits at all to what future presidents can do. my written statements identify at least four significant, concrete, realistic limits.

i have time now just to go through them. but in a nutshell one the president cannot simply refuse to spend the resources congress has appropriated for enforcement. but that's not a problem here because president obama has spent every penny congress has given him for immigration enforcement and used it to remove 2 million people. nothing will prevent him from continuing to do the same. the governing institutes impose limits. they'll generally indicate how broad the executive discretion is in a particular area. in this case, congress has given the secretary of homeland security especially broad responsibility for and i quote, establishing national immigration enforcement policies and priorities. now, nobody claims that power is limitless, it is subject to any statutory constraint. but none of the critics have

identified any statutory provisions they can credibly say doca or dopa violate. three, the particular priorities can't be arbitrary or capricious. these particular executive actions set three priorities. national security, public safety and border security. i doubt many would say those are irrational. and fourth and finally, even if the priorities are rational they can't conflict with any enforcement priorities that congress has specifically mandated. but here, it's just the opposite. congress has expressly mandated exactly these very same three priorities. so there are serious limits, and these actions fully respect them. thank you very much, again, for the opportunity to testify. >> thank you, professor. we'll start the round of questioning, and i'll recognize myself, and i'll start with a question for you, professor. you state in your testimony that the, quote administration's recent executive actions do not even approach an abdication of its statutory responsibilities.

what in your view would the administration have to do to abdicate its statutory responsibilities? would granting deferred action to all 11 million unlawful aliens be enough? >> membership answer to that is yes. that would be enough. and i did. >> so would say 9 million, would that exceed it? >> the answer to that would depend on an empirical question. the question is would the president still be spending substantially the resources congress has provided? >> well, let's remember that the president, when you talk about deportations, the president counts people for deportation that previous administrations did not count because they simply turned them back at the border rather than digging through a process and deporting them. 2/3 of the people who are, quote, deported under the president's, the 2 million figure you cited were not counted in previous administrations because they weren't put through that process. but be that as it may you're saying that if the president blows through all the money in a

way that uses it all up, whatever that number is that's the number he can give not only deferred action to but also employment authorization and social security benefits and earned income tax credit and legal presence in the united states. >> well, as i said a moment ago that's only one of what i see as four different limits. but the answer is yes, the president must spend the resources congress has provided. >> and as long as he does that, if that meets the number. if he spends it all on 100,000 people, which is the number of actual deportations that occurred last year, 102,000, then he can give deferred action to the other 10.9 million people who are unlawfully lyly present in the united states. >> no it's not. for i think the third time, i think there are other limits, as well. and they include not only spending the money but making sure it's within the terms of the statute, making sure

priorityies are rational, making sure priorities are compatible with those congress has specifically mandated and so on. it would depend on all of those things. >> well, let me just ask our other panelists. attorney general laxalt, would you like to respond to that assertion? that the president has this massive discretion? >> you know, i think zooming out, congress has been debating this for many many years. and in this particular case this path was not specifically not voted on by congress. by president obama's own words many times over again before he did this, this is just not a power that our constitutional system contemplated him having. if he does as mr. chairman was heading this direction. if 5 million's okay why isn't 6 million, and why isn't 7 million? and if two years is okay, why

isn't three? seems pretty clear. and once you add the benefits that's included there's no 8,uáur#ication this fits under prosecutorial discretion. >> let me follow up on it. you and 25 other states attorneys general, including some governors i think in some states have brought an action in the district court in texas. and do you agree with what judge hanan said in his opinion in that case? cannot enact a program whereby it not only ignores the dictates of congress but actively acts to thwart them. not just re-writing the laws, he's creating them from scratch? >> you know, we believe as the three claims that have been made that the constitution has been violated under the take care clause. the administrative procedures act has been as judge hanan been

thwarted. he didn't ultimately decide that for the sake of this preliminary injunction, he reserved that as well as the constitutional issues for the future. the states certainly still believe in all three cases, the president has failed. >> let me afford that opportunity for professor blackman and professor foley to respond to that, as well. >> so i think that the professor was that it didn't go far enough and it's an important reason why. the professor wrote that how come it didn't apply to the parents of the dreamers? o right? i think this raises an important point. many of the professors think the president didn't go quite far enough. even the doj's perception was more narrow than that. i will stress for the moment that the reason why they didn't go far now was because there has to be some sort of relationship to a group that congress has preferred. doca was people without legal status. one important point is, 21 years

for the petition for a visa followed by a ten-year bar. more importantly, parents of lawfully residents can never get a visa through their children. this is a case where the policy's favoring people who have not been a class congress has preferred. >> professor foley? >> yeah, i would just say. it seems patent to me that doca and dopa are categorical exemptions from law. and with respect to the professor who says that's not the case, just look to president obama's own words when he announced dopa publicly in november of 2014. he said in a televised speech before the nation all i'm saying is we are not going to deport you. i think that speaks volumes. the other thing i would say with regard to doca is just look at the numbers. we have two years of experience with doca at this point, and the latest numbers as of the end of 2014 show that 97% of doca applications have been approved by the administration and in a

letter from director leon rodriguez to senator grassley not too long ago. he admitted the reasons why the 3% have been rejected is because they're not filling out the paperwork properly or attaching the right check for the processing fee. that, to me, sounds like if you meet the criteria that's been a unilaterally established by this president, you will get an exemption from deportation, and that's not what the ina declares. >> thank you. >> chair recognizes gentleman from michigan, mr. conures. >> thank you, mr. chairman. professor, could you respond to the question that has been posed by the chairman? >> i'll get it right this time. first of all, the figure is 95%, not 97%. professor foley's numbers are quite old and the current uscis website has laid this out in detail for several months now. we can speak later, if you wish,

about whether even 95% is too high. but it's actually 95%. but second i think with respect that you've confused denials with rejections, when you were speaking about people losing because they hadn't signed the form or submitted the fee. those are the rejections. there are more than 40,000 of those. but in addition, there are more than 38,000 denials on the merits. and i think it would come as quite a surprise to those folks to learn that decisions are being rubber stamped. >> thank you very much. >> let me ask you this in your opinion, do the executive actions taken by the administration both doca and dopa alleviate the need for congress to pass broad immigration reform measures? >> thank you, congressman. i would say the answer is, no. as the president himself has made clear on many occasions he can't do what congress can do. only congress can create an immigration status and a path to

a green card and to eventually citizenship. all he's done with deferred action is to say we'll give you a temporary reprieve from removal. we will make you eligible to apply for a work permit. and if it's granted, then you can apply for a social security card. but that doesn't approach a green card which would give you the right to remain permanently, the right to eventually naturalize, the right to bring in many of your family members and so on. deferred action doesn't do any of those things. >> thank you. let me ask you about the texas litigation. judge hanan joined the deferred action program because he believed the applications were not being adjudicated on a case by case basis. and concluded that this was not happening in the doca context. do you think that is a

reasonable way to approach the decision in that case? >> thank you. i'm glad to have a chance to answer that question. because it really lies at the basis apa denial and the constitutional claim. judge hanan had no support in terms of evidence in the record that was true. the starting point is the secretary's memo. it explicitly says repeatedly you must engage in individualized case-by-case determination and that it also specifically says that even if the threshold criteria are met, you still need to exercise discretion. furthermore, there's a lot of discretion being exercised just in determining whether the threshold criteria have been met. for example, to figure out whether somebody is a threat to public safety is not just the question of fact. it's also an opinion as to how much threat a person has to be before will deny it and so forth. so what the critics are really reduced to having to argue in effect is that this uscis workforce is going to

systematically disobey the secretary's clear explicit instructions to exercise discretion. there's not one shred of evidence in the record to support such an accusation. >> now, does the, are the president's critics correct when they argue that the president himself doesn't believe doca and dopa are legal? has he contradicted himself somewhere along the lines? >> i don't want my answer to sound disrespectful, but that has been one of the most irritating objections i've been hearing along the way. i know that it makes for good political theater to keep saying the president has contradicted himself. but when you look at the statements the president has made with one exception almost all of them have been grand, general statements about how i have to obey the law. i can't suspend all deportation, which he's not done, and so forth. he recognizes there are limits on his discretion, and obviously, he believes that doca and dopa do not exceed those

limits as do the vast majority of experts in the field. the one exception i have to acknowledge is the unfortunate statement made in a spontaneous reaction to a heckler at one gathering when he said i took an action to change the law. i'm sure if he could go back and edit his comments, as so many us would love to do, he would like to say i took an action to change the policy. but to read global legal significance into that one off-hand comment does seem to me highly misleading. >> thank you for the balance that you brought to this discussion. and i yield back my time. >> thank the gentleman from michigan, recognizing mr. forbes. >> mr. chairman, thank you. and mr. laganski let's go back to your political theater remark. there have been two lines on that political theater our friends on the other side of the aisle have played over and over again.

one of them was found in your testimony that your written system. oh, this administering is okay. they're justified because they've removed more immigrants illegal immigrants than any other administration. you state in here that they've removed, i think, you said 2 million aliens. but isn't it really a little deceptive? because aren't about half of those removals claimed by i.c.e.? they actually originate because they're caught along the border. in fact, one of the articles pointed out said this, the statistics are deceptive because obama explained arresting more people as they cross into the country illegally. those people are quickly sent back to their countries but are counted as deported illegal immigrants. is that a fair statement? >> it's factually correct. >> let me follow up. i only have five minutes. we had sitting where you're sitting now, the president of both the i.c.e. agents and of the border agents who testified

une kwif unequivocally, that causing more and more of these people coming across the border. isn't it really true if you're talking about political theater that is kind of for the president to say he's sending more people back that he's stopping at the border, kind of like a fire chief justifying his right to commit arson because it helped him put out more fires. it doesn't make sense to me. and then when you look at the other line they've been using on their political theater, it's this one. well somehow the other if congress doesn't act. and i determine as president of the united states that the law is broke and it just doesn't work, then all of a sudden, it shifts the constitutional power over to me. so, attorney general laxalt, i would ask you, if you look, and the president, congress as i understand it has the authority to establish a uniform rule of naturalization. is there anything in the constitution that says if the

congress doesn't want to act because they like where the policy is or even because they can't act that somehow that shifts the constitutional right over to the president and that he can take any actions that he otherwise couldn't have taken constitutionally? >> thank you, mr. congressman. you know this is the crux of the argument. and of the lawsuit, and it is certainly one of my biggest concerns that has been so for many years going back probably to when i was a law student at georgetown. our constitution is eroding. and the executive branch continues to take more and more power. i can't think of a more clear example of something that the constitution clearly says the congress is supposed to perform. and as i said earlier, congress has debated this, the president did not get the policy he wanted and now he's decided to do it. i'd like to read a quote and answering to the professor.

i don't mean to gang up on you here, but as to your comment that the president his multiple statements didn't exactly say he couldn't do this. a heckler told him that you have the power to stop deportations. and obama replied, actually, i don't. that's why we're here. what you need to know when i'm speaking as president of the united states, and i come to this committee is if in fact, i could solve all these problems without passing laws in congress, then i would do so. but we're a nation of laws, that's part of our tradition. and so it's easy way out to try to yell and pretend like i can do something by violating our laws. and what i'm proposing is a harder path, which is to use our democratic process to achieve the same goal that you want to achieve. this president knows that he can't do this. he knows our system did not allow him to take these extra steps. there is no question as judge

hanan said in his opinion. there is a wide berth for prosecutorial discretion. i don't think you're going to get a lot of argument about that. but this goes so much further than any prosecutorial discri 9"á ráhq+er been béqq9 if this was allowed then congress' role in this entire field is abdicated. why would congress take year after year to debate these issues if a president is able to take a scope we've never seen before. and in addition add benefits on top of simply deciding to not deport? >> we saw that kind of syntax change when we heard you can keep your insurance policy if you want to, as well. but it makes no sense that we have these arguments. my time's out, mr. chairman, i yield back.coy'ñ >> thank the gentleman from georgia, the chair will now recognize the gentleman from new york. >> thank you. i must begin by saying i'm surprised to hear the attorney general of a great state confusing political statements with legal statements.

all the quotes from the president are interesting in a political debate and the political discussion. they're not interesting in terms of what his powers actually are. his opinions, frankly, in a political context at all. what's interesting, what's relevant as the attorney general should know as everyone here should know are what the laws are, the court decisions are. not the president or anybody else's political statement in any context. let me say, also. let me ask professor lagomski. we've heard that the president's exercise of discretion since it's categorical is somehow different. and that he's establishing categories of people when he's giving rights that congress hasn't chosen to give. essentially, that's the gravity of what we're being told, i think. i think rather and please comment on this, that's untrue.

because the president is exercising discretion and granting deferred action to certain people. he can choose. the supreme court has said it, congress specifically said it. he can choose to do that by group, by category. in fact, it'll be difficult. if the president came out with a list and said the following 2 million people by name are granted deferred action, we would think that's sort of ridiculous. although, i don't think anybody3 &háhp &hc% would question his authority to do that. by doing it by category, i don't think he changes that. and please comment on the fact he's not invading congress prerogative because he's -- this deferred action can be revoked at any time, number one. and confers no permanent benefits. even if it's been stated repeatedly that they get benefit, these people get benefits they may get a social security card. could you comment on those two points? >> sure. i think everything you said is

absolutely correct. two things on the discretion issue. first of all i do agree that there's really no law out there that says the president couldn't grant deferred action on the basis of a class base discretionary judgment if he wanted to do so. we don't have to reach that issue here, however, because the president didn't even do that. he did provide specifically or the secretary did for individualized discretion. this is the way agencies normally behave and it's sensible. you want the agency to provide guidance to officers as to how they're to exercise a discretionary power. first of all because you want political accountability. secondly, because you want this information to be transparent because it's important. and third, the officers on the ground need to know what to do. and fourth we want some reasonable degree of consistency. to the extent possible, you don't want relief to depend on which officer you happen to encounter or which prosecutor's desk your file happens to land on.

the evidence and the records show the case by case evaluations are being made. >> i'd like to simply comment on some of what's been said in a dialogue with mr. forbes and others. the decision to formally remove border crossers rather than to return them was a strategic choice by president bush in order to disincentivize illegal entries. creates future bars to administration. would you comment on that? >> sure. >> i think it makes sense for another very important practical reason. it's just very smart strategy. it's a lot smarter to stop a person at the border than it is to divert resources from the border, let people in and try to chase them down years later. >> thank you. >> many of the critics complain they go beyond immigration laws and instead affirmatively provide a lawful status to people who are unlawful status. is that correct?

>> the status remains unlawful. they have unlawful presence which has a specific meaning, but their status. >> still unlawful. >> and critics of the actions act as though these issues are entirely novel to the federal courts. hasn't the supreme court, in fact, spoken about the extent to which the administration has authority to exercise prosecutorial discretion in the immigration issues specifically and whether granting deferred action is an appropriate form of that discretion? >> they've done that in a couple of cases. one supreme court decision recognized deferred action by name. the facts were different, but the take away was the same. the president has this power. >> what about the president has done aside from the fact his name, perhaps his party and the politics of immigration is different than what previous presidents have done.

>> i don't believe it is different. they're not meaningfully different, slightly different form was used in previous cases. but the fraction of the undocumented population that the actions were predicted to affect is roughly the same and in all other respects i'd say the one common denominateor in all of these cases presidents use their powers to relieve noncitizens from temporary reprieve. to large specifically defined categories of undocumented immigrants. and that's not unprecedented at all. >> thank you very much. my time has expired. >> and the chair would recognize the gentleman from arizona. mr. franks. >> it's often said that when human rights and human laws are in human hands men lose their freedom. and professor foley, i sometimes

am entertained reading from the federalist papers. i'm not an attorney it gives me a little thrill, you understand? but in madison statement, federalist number 47. he state that had the accumulation of all powers legislative, competitive and judiciary in the same hands whether if one a few or many and whether hereditary, self-appointed or elective may justly be pronounced the definition of tyranny. the framers of the constitution understood that the accumulation of powers and tyranny were inseparable. and they rejected giving the newly -- the legal authority to suspense with the enforcement of the laws. and that, of course, in their mind was the province of congress. so my question to you is do you believe that the president's recent actions comport with the framers' conclusions? and is president obama refusing to adhere to the take care

clause in an attempt to evade the rule of congress? and was he acting constitutionally when he did that? >> you ask a very salient question. absolutely the president here is violating the take care clause. his duty under the constitution, again, is to see to it that the laws are faithfully executed. even if they're completely broken and for everybody on both sides of the aisle agree the law is broken, the president does not have the constitutional power to fix it. if it's going to be fixed, it has to be fixed by congress and congress alone. i think the framers would be rolling over in their depraves if they knew what this president was doing. and let me address prosecutorial discretion for a moment if i may. one of the hypotheticals that get bandied about is to say, well, you know a sheriff for example can decide that he's only going to pull over speeders who go 5 miles per hour or more

and let everybody else go. and that's what this president is doing. there's no difference. there's a world of difference between those two things. what that president is doing in that hypothetical is classic prosecutorial discretion. but that's not what president obama is doing by these actions. to be analogous to what president obama is doing here, that sheriff would have to first of all publicly pronounce to the world that he's not going to pull over the speeders despite the fact that the law says they're speeders. he would have to say, and if i do pull anybody over, i'm only going to give them a fine of $1 even though the statute says it's $100 or more fine. and maybe also when i decide to pull them over i'm going to give them a gift card from best buy. confer benefits upon them. that's what the president is doing and clearly not prosecutorial discretion. >> yeah. >> i'm not sure i should ask any questions at that point. do you agree with the comments

basically? >> oh, absolutely. and as i noted in my opening remarks, madison wrote, ambition must be made to counteract -- congress wants something. the only way to prevent tyranny to prevent, is let both them butt their heads. in many respects the gridlock is a symptom of that. people say washington's gridlock, well, the people who voted for you sent you here with certain positions and it's very much the case today that people have a stark opinion on issues. now while it's regrettable that the congress hasn't been able -- that's not a license to expand your power. as justice scalia noted last year gridlock is a feature not a constitutional order. similarly justice briar said that these are political problems not constitutional problems. so the point i'd like to stress is the mere fact that washington's gridlock doesn't give power to transcend. also briefly, the arizona case was mentioned a moment ago. definitely say the president has powers over the discretion.

but if you go to the next paragraph, it says the case may turn, quote on the equities of an individual case. it says in the opinion justice kennedy. read both paragraphs, and this is won on a case-by-case basis. thank you. >> professor, let me just quickly expand on one other thing you mentioned. the federal district court in texas made this distinction between the federal government simply not enforcing immigration laws on removal of an individual and taking a next step of providing lucrative benefits to unlawful aliens. and that seems to be an incredibly stark precedent here. could you expand on that a little bit? why you don't want to go down this road.

>> this particular population. and then once he makes those moves, then he confers all these benefits upon this population. that is classic boot strapping. and if the president can make the first two moves, then, you know, why not boot strap and add the other move which is the conferral of benefits. that's what makes this so dangerous. it's not just naturalization, but the power of the purse. and these benefits have financial consequences. not only to the federal government, but, of course to the states, which is why they have standing to sue him. >> time of the gentleman has expired. >> chair recognizes the gentlewoman from california. >> before asking any questions, i'd ask unanimous consent five statements from the following organizations explaining the legal authority for the president's actions from the constitutional accountability center, the asian-american advancing justice, american

immigration council and the national council of asian-pacific americans. >> they'll be made a part of the record. >> thank you. >> professor, i want to say publicly that, you know, i've been in congress for 20 years. i read a lot of testimony in many hearings over the years. your testimony is the best most concise i've read. and i thank you very much for your service in that way. just a few questions. professor foley indicates that the undocumented immigrants covered by doca and dopa are, quote, no longer deportable, unquote, and that according to the office of legal counsel quote, illegal immigrants who fall outside these priorities are not to be deported at all. do you agree with that? and if not, why not?

>> no, that statement is not true. they are of course, still deportable. the secretary has made clear that deferred action could be revoked at any time. there's nothing to prevent the administration from initiating removal proceedings at any time. i'm not sure what the basis of that assumption. thank you for those generation words that were too generation. >> in the reno case justice scalia had a key holding. was it congress had made immune from judicial review any action or decision to, quote, commence proceedings, adjudicate cases, or execute removal orders. and went on to say that at each stage the executive has discretion to abandon the endeavor. and at the time the hour was

enacted, ins had been engaged in a regular practice which has become known as deferred action of exercising that discretion for humanitarian reasons or simply for its own convenience. professor foley in her written testimony i think tries to diminish the significance of that case to distinguish. that says that the court merely acknowledged that congress did not want federal courts to get tied up in adjudicating discrimination lawsuits. do you agree with that? and if not, why not? >> i think professor foley makes a fair point. and noting that case did involve a denial of relief rather than a grant of relief. but the broad take away from the case is evident from the court's language, where it went out of the way to say this discretion extends to the decision whether to adjudicate cases and also whether to execute removal orders. so the facts might be slightly

different. but i so e noee no basis for distinguishing it solely based on the facts. >> there's been a lot of discussion about how dopa and doca grants additional benefits. but it is my understanding that it simply defers action. and pursuant to section 274-a the immigration nationality act, which provides that employment may be authorized either by the act or by the attorney general. and hcfr 274-a.12 provides that an alien who has been granted deferred action an act of administrative convenience to the government may apply for authorization if there's an economic necessity which must be proven. is it your position that it's only the statutory basis that's being exercised following a granted deferred action? or does the executive action give some kind of benefit

directly? >> yes, i think it's a little bit of both. i would distinguish two kinds of so-called benefits. first of all, there's the benefit of simply receiving a piece of paper in which the government tells you we are deferring action in your case. people can disagree on the policy of that. there are pros and cons of telling the person. but i've never seen anybody cite a law that says it's illegal to tell a person we're not going to proceed against you. the other benefits and the ones you've been describing just now are as you point out specifically authorized by statute and even more specifically authorized by the regulations. they've been enforced since the early '80s. again, they do have the force of law. they specifically say if you received deferred action you are eligible to apply for a work permit. >> now, we appropriate money every year that allows for the removal of roughly 7% of those who are in the country in an undocumented status. it appears to me. i mean the affidavits submitted to the judge in texas by the head of i.c.e. and the head of

the border patrol indicate that having a piece of paper would be to note the priority would be very helpful to them because the cost for removal is not at the stop. it's the -- it's the detention, the court processes, a lot of cost that goes into that and knowing that this person was not the priority at the beginning would be helpful to the agency before costs are incurred. do you think without having these priorities we're going to end up having to say that the nanny is who is caught on the street is as high a priority as a drug dealer or gang member? >> i think that would be the logical result. it would be up to each individual police officer to decide what do i think my agency's priorities ought to be? and may i just add in addition to the benefit you've just described, namely helping i.c.e. sift out the low priorities so they can focus on the high priorities. in addition, uscis is collecting

a lot of very useful law enforcement data that can be shared with these other enforcement agencies. and of course, all of that is being paid for by the requesters themselves, not by the taxpayer. >> my time has expired. mr. chairman i yield back. >> thank the gentlelady from california. now recognizing gentleman from texas. >> thank you to the witnesses here today. i want to direct the first question to our two law professors. did both of you read the 123-page opinion by judge hainan? >> yes. >> yes. >> okay. i've got it here myself. for full disclosure. he was a classmate in law school. he was one of the best and brightest. went with one of the best firms in the country in houston. and why president bush nominated him. he was a brilliant guy.

have you also read the response that the -- that has been filed by the doj? both of you? >> yes. >> well i was noticing at page 10 of the response where they're saying the government would suffer irreparable harm absent a stay. and in the very next sentence, they say that the injunction, judge hainan granted blocks dhs from exercising its authority conferred by congress. and it's congress that's trying to stop them from exercising the authority, not by a written executive order as judge hainan makes clear, but as a good monarch would do, the president spoke law into existence, and then the secretary of homeland security ran and put it into a memo. and so i'm wondering if a law

student in response to a question given a question. here's your exam, respond to the 123-page opinion of judge hainan. and they came back and said the injunction will prevent us from doing the job that congress conferred on us. what would be your response as law professors to that answer? >> well i guess my first response would be, again, boot strapping argument. right? what happens happening here, they're going to suffer irreparable harm because they're prevented from doing what they think they have the authority to do. but, of course the $6 million question is, do they have the authority to do what they're trying to do? and that is, it's got to be no. the answer has to be no. because despite the attempt to identify four criteria that he

thinks provides a meaningful limiting principle, with respect, they don't provide a meaningful limiting principle. if this president can do that, this future presidents can unilaterally suspend for entire categories of people they prefer for political reason operation of various laws, environmental laws, labor laws tax laws and on and on and on. and that clearly upsets the constitutional balance. and that's not faithful execution of the law. >> and if i may add, the ranking member's correct. this was not a constitutional decision. but i think judge hainan showed his hand a bit, maybe a texas bluff if i may use the example. and suggested clearly there would be an abdication. the constitution says he will take care of the laws be executed. speaks of a complete abdication of the laws against entire class people. explains very clearly why. one aspect of the