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 opinion that

hasn't been appreciated says we need notice in common. we need rule making. how is this working? i think this hearing is why. we don't know how this policy works. in my research, i find a checklist used by dhs which has no other box. by checking off a box. professor found some narrative form which is slightly different. admitted in the testimony there were different types being used. this would be a perfect opportunity to take the time to show to the american people, how is this working? show us what's happening and then we can go to court. i think there's one aspect of judge hainan's opinion is learn what this is doing. we're learning this now after the memo's being released. had texas not filed the lawsuit when it did, no opportunity to challenge it. >> my time's about to expire, but this is -- this is an incredible response in how poorly done it is in my mind. the bottom of page 10. it says for reasons long recognized as valid the responsibility for regulating the relationship between the united states and our alien

visitors has been committed to the political branches of the federal government. as such, preliminary junction necessarily causes irreparable harm. they cite this belongs to congress and then come back and says, so if you leave it to congress, it causes the executive branch irreparable harm. . for heaven sake, our justice department needs better attorneys. and especially when you look at page 15 saying that you've got to throw out the injunction because it undermines the department's efforts to encourage illegal alien. again, professor boot straps, they were not given that responsibility. that's not their job. i see my time's expired. >> thank the gentleman from texas. the chair would recognize the gentlelady from texas. >> let me thank you very much, mr. chair. and i think it's appropriate to acknowledge we have members here

and witnesses here how much we appreciate you coming and offering your testimony. i also think it is important to acknowledge that there are many issues that this judiciary committee, my friends on the other side of the aisle. republicans and democrats work together and collaborate on. and i think that should be a message preceding the vigorous disagreement and unfortunate interpretation that is now given at this hearing. let me associate myself with the words of my chairman. i'd like to think this is a hearing regarding president barack obama's executive actions. and i would prefer him not to be called obama, and to honor the office in which he holds. i also want to acknowledge the constitution. we went through this argument to the various professors with

respect to the powers of this president. and we all can interpret the final words of the section 2 that deals with shall take care that the laws be faithfully executed. and therefore, we make the argument that the executive actions are in actuality a reflection of those laws being faithfully executed. so i just want to i don't really want you all to suggest i'm trying to show my smiling face. but immediately when the order came out from texas texans and families that would've been severely impacted came together and said they stand with the president for the humanitarian, the relief, the authorized relief, the discretionary relief that allows him not to convey status but through his attorney general to be able to have

prosecutorial discretion and to be able to discern the prioritization professor of crooks and criminals, felons versus families. these are the family members. this is an a parent that would be -- if you will separated from their child. and i think i want to make sure i have professor -- is it la goskey? i'm so sorry. >> yes la goneski. >> i want to make sure i pose my questions to you in a short period of time, because i think you elevated us to a level of understanding worthy of commentary. this is a hearing that contributes to political security, and not national security. in this hearing, the back drop, we are not funding dhs. this is a horrific tragedy in the midst of the crisis of isil and we're doing it on untoward, misdirected arguments that really are not accurate. and i think that's important. i would say to my good friend

from nevada that we have documentation that nevada would be severely hampered by the presence of your lawsuit, but more particularly, not funding dhs. i may have the opportunity to present that into the evidence, sort of looking for my documents right now. but there are documentation that grants you would warrant a need be not generated. and i ask you!ac,z to review the impact of not funding dhs and you ask me when i'm not at a dhs hearing. i just came from one, that's why i stepped away. but you are engaging in a discussion that tracks why dhs is not being funded. allegedly because these executive actions are unauthorized and it's absolutely incorrect. let me also show you, if i might, for the people who believe that this is a frivolous exercise professor these are

the procedures that the discretionaries have asked these individuals to go to. and i think i count up to 15. i would really like to know how many of us go to 15 eligibility requirements to do anything. quickly, my question to you is, to go back to this constitutional question of the executive action, and you premised it on the fact that the president -- the discretionary authority, but in actuality,wekúp that the arguments made by my good friends, and i call them that, are incorrect. that his authority that he is now exercising is limited. it is not a broad parameter. it is not offering citizenship. it is not offering the affordable care act. could you tell us how we are in the context of not having a run-away executive laying the precedent for a run-away executive in the future. >> yes thank you -- >> the gentle lady is out of time but you may answer the question. >> i thank the chairman for his indulgence

indulgence. >> let me say first as outlined earlier, there are several tangible limits. i know professor foley has just said i don't think any of the four limits really work. i'm not sure why they don't work. there are real limits on what a future president can do. and i very much appreciate your having brought to life what these issues are about. this is not an academic game we're talking about the lives and hopes of millions of people. and i'm thankful to you for bringing that out. >> the chair thanks the gentle lady from texas. now the former united states attorney, mr. moreno. >> i have a request that since i'm running between -- among three years they could -- would the chairman skip me for a moment? >> i would be thrilled to go to the gentleman from ohio mr. jordan. >> i thank the chairman. professor foley, a number of my colleagues on the other side of the aisle have said republicans are holding the dhs funding bill hostage. now, professor we passed legislation last month that

funds the department of homeland security at the levels they agreed to. of levels they wanted. so in your opinion, as a legal scholar, do you think we have held anything hostage or have we done what constitutional we're supposed to do? >> congressman jordan, i think you're doing exactly what the constitution contemplates you should do, what the framers anticipated you would do. they anticipated you would vigorously defend your constitutional purgative. >> right. but we passed a bill at the levels they want. we did include language in the legislation which said we think that what the president did last november was unconstitutional. we took an oath last month when we were sworn into this congress to uphold the constitution. so we put language in there that said we don't think you can use taxpayer money you shouldn't use. we're not going to allow you to use american taxpayer dollars to carry out an action we believe is unconstitutional. do you believe the president's actions last november were unconstitutional, professor foley? >> i absolutely do. let me say it's one thing to hold an appropriations message

hostage. it's another thing to hold the constitution hostage. >> you think it's unconstitutional, i think it's unconstitutional, the gentlemen to your right think it's unconstitutional and a whole bunch of other folks on the right and left of the spectrum think it's unconstitutional, correct? >> that's correct. >> and last week we had a federal judge say what the president did was unlawful. correct? >> correct. >> so the fundamental question, the fundamental question here is how can democrats insist on making sure that they can hold the dhs bill hostage to maintain the ability to fund something so many people think is unconstitutional and a federal judge has said is unlawful? don't you think, professor, foley, that's the central question? how can democrats insist we want a bill that allows us to fund something everybody -- not everybody, but a lot of people think is unconstitutional and a federal judge has said is unlawful. how can they insist on that?

>> i don't know. you may want to ask your colleagues on the other side of the aisle that question. in my opinion, it seems like it is, in fact, the other side of the political aisle that is holding the constitution hostage. >> professor foley they not only want to insist they be able to fund something that's unconstitutional and a federal judge has said is unlawful. they're not even willing to debate the issue on the floor of the united states senate. i mean it's one thing to make this -- we think -- just bring it up for debate. let's have the full debate like we're supposed to. the committee next door, we invited secretary johnson to come in and testify at an oversight hearing next door and he refused to come testify. he can go on every tv show over the weekend and talk about this but he can't come testify and answer these fundamental questions? so if anyone is holding it hostage, seems to me it's the democrats of the united states senate. we have a bill over there. funded the department of homeland security at the levels, the democrats agreed to. but has language which says you

can't do something that's unconstitutional and a federal judge says is unlawful and they refuse to even debate it. >> well, that's a shame. that's not the way the constitution republic is supposed to work. it's the process of debate and deliberation that gives you your value to the american people. and this is a controversial issue. and it ought to be discussed and debated. i'm glad we're having the hearing today. but they shouldn't play politics with the constitution. >> lord have mercy. >> yeah. and the final thing i would say mr. chairman, and it's been said many times. but 22 times the president said that he couldn't do what he did. legal scholars on the left and right have said it's unconstitutional. a federal judge has ruled it's unlawful. we have a bill that funds dhs at the levels the democrats agreed to. and puts language in there that's consistent with the president's statements 22 times, consistent with what legal scholars across the political spectrum say and consistent with

what the federal judge just ruled on last tuesday. it's unbelievable to me that we cannot just pass that legislation and do -- and do what the american people want us to do. with that, mr. chairman i yield back. >> i thank the gentleman from ohio. and the chairman will now recognize -- >> can i have unanimous consent for introducing two items into the record, please? >> okay. >> thank you, mr. chairman. i offered a eligibility chart. i would like unanimous consent to place that into the record. >> without objection. >> a chart dealing with the state of nevada homeland security profile summary of fema. i would ask unanimous consent to place that into the record. >> without objection. the chair would recognize the gentleman from tennessee, mr. cohen. >> thank you, mr. chair. professor, you said that how many different professors or attorneys specialize in emigration law felt this was appropriate and constitutional? >> 135 immigration scholars and

professors. not even counting practitioners signed on to that letter. >> do you know how many people in that similar class, although the class is hard to define, said it wasn't constitutional? >> i'm aware of two, and another -- and a third person whose views are somewhat ambiguous on it. but there are very, very few in number. >> so 135-3. that's even better than kentucky usually gets in basketball with bad opponents. >> yes. no, i don't want to represent that every immigration professor has opined on the issue. but of those who have, those would be roughly the numbers. >> and you are a professor of immigration law, is that correct, for 30 years? >> yes, sir. >> and had written the textbook that is in 183 law schools, is that correct? >> it has been. i'm very fortunate, thanks. >> i want to -- you are indeed the most expert person we have. these other folks are fine people and they have done a lot

of work to say that obamacare is unconstitutional and a lot of work on health care law and some work saying that colorado shouldn't be able to legalize even though justice bran dooiz talked about democracy shouldn't be able to do that. but you are the expert. none of these other folks have written textbooks on immigration law, lectured immigration law. in fact, their main work has been on property law constitution law and health law. you believe this is 100% constitutional, do you not? >> i do. and can i just say, i have a great deal of respect for both of my colleagues here. they have both done some wonderful scholars and top people in their fields. but ultimately whether the take care clause has been violated depends on the immigration laws. if you're going to say the president has not taken care to execute the laws, you have to specify what laws you think the president has violated. and one of the things that has struck me about this discussion has been almost no reference to any specific provisions of the law that they actually say has been violated.

>> and you're familiar with 6 usc 205? there is a clause there that says the secretary shall acting through the undersecretary for border and transportation security, shall be responsible for the following. and it gives eight items. and number five is establishing national immigration enforcement policies and priorities. does that not clearly give the administration the authority to do what they did? >> i think it does. with one qualification. i agree with professor foley, that that's not limitless. they have to -- the secretary must exercise that power consistently with any specific statutory constraints. again, no such constraints have been credibly identified. >> do you have any -- you were an attorney also i think for immigration here. do you have any ballpark figure on how many dollars it would cost the taxpayers to hire enough attorneys and go through the proceedings to try to -- stop those people, send those

people out of the country? >> i'm sorry sir. i don't have a number on that. there have been studies, though. and there's no doubt that the number is -- was cost prohibitive. it would be impossible. >> millions of dollars. >> yeah, many many billions. >> could it -- >> i'm sorry, i want to take that back. i shouldn't say many billions because i really don't know the number. but it's astronomical. >> astronomical is as close to many millions. in the same ballpark. presidents reagan and bush the first did much similar to what president obama has done. and you commented that other than i think it was maybe ms. lee and representative nadler. how would you distinguish the reprisals this president has gotten. why has this president differed from other presidents? >> i think first of all they are very similar in that in each

case the president was doing something congress -- sorry, was acting in an area in which congress has specifically decided not to act. one of the differences that professor foley mentioned, and i have to say, this is a fair argument. though i disagree with it. the argument was well, president bush was exercising a statute -- specific statutory power, because there was something in the law that authorized voluntary departure. i don't know if he exercised on a class-wide basis but there is that. the only point i would make, first deferred action itself is recognized in many places in the statute. it has been recognized by many courts. and secondly the most explicit legal authority which does have the force of law, is the regulation that has been in force for more than 30 years. >> thank you, sir. and i want to make clear, professor foley, i wasn't meaning anything about the u.t. kentucky game. they played a great first half, and i'm pulling for u.t. also, but kentucky is too much. >> thank the gentleman from tennessee. the chair will now recognize the

gentleman from texas, judge poe. >> i'm over here on the far right. let me ask you some questions. thank you all for being here. professor blackmon, thank you also for being here, south texas. i couldn't get into south texas. so -- but i'm glad -- tell professor treas hello. quite a credit the school has him. let's assume these hypotheticals, being from law schools, law professors love hypotheticals. let's talk hypotheticals. the next president whoever it is, decides, i am going to postpone the individual mandate in obamacare indefinitely. so be it. issue memo out to the fruited

plain. next president decides i am going to postpone the implementation of epa regulations indefinitely. throughout the fruited plane. i have decided that in all fairness, some peoples just should not have to pay income tax. so i am going to tell the irs not to enforce the irs code to a certain specific group of people that i think just shouldn't have to pay income tax. memo out to the fruited plane. and we could go on indefinitely, indefinitely. if everything stands like it is with the courts the president, the executive issues, orders is this a possibility that these types of executive memos from future executives may just happen? >> with respect we are living

that era. president obama has delayed an individual mandate once for an entire class of people based on the hardship. what was the hardship? obamacare. it was too expensive. president obama has delayed the employer mandate twice until 2016. what was the hardship? obamacare. it was too difficult. so with respect, we're living in thatter are era, and i think it's a scary time. we don't have enough agents to enforce the internal revenue code so we're not going to enforce it. and we'll tell people the corporate income tax is way too high. for any corporation that has so many employees, we're not going to enforce it. it's too much work. and i think it sets a very dangerous precedent. one point i'll add is faithfulness. the constitution says you shall faithfully execute the law. i'm okay with the president making a good faith belief that his actions consistent with the statute is discretion. this is one of bad faith. the reason why the president's statement is irrelevant it's not for political theatre. it's to say he said this he was

asked can you defer the deportation of a mother, he said no. the justice department said no this can't happen. and suddenly congress finds this authority. i think it's bad faith. now, we are in uncharted waters. if you open up a constitutional case book where i have expertise, you will find there is not much written on the take care clause and that's why lawyers are relevant to understand why the separation powers trumps immigration law when it goes too far. it was mentioned 6 usc 202 and 8 usc 203. the discretion the justice department weighs now is unconstitutional. and i should add the memo does not put that much weight on the supervision but doj did after they lost in oral arguments, shifted their position to these two provisions. so i'll stress, there is discretion, but it's within the take care clause which unfortunately now we have to litigate and it will be at the fifth circuit any minute and the supreme court. >> i want to reclaim my time professor.

i know i -- i only asked you the time. i didn't ask you to tell me how to make a watch. and i mean that kindly. only because we have so little time. understand. my question was those hypotheticals that i gave you, are those real possibilities if everything stands the way it is. that the next future executive, in good faith, faithfully executing the law of the irs code, says it's just not fair. that everybody has to pay this income tax. 39% or whatever. it's waved for those people. or the epa, it's too big a burden out there on americans to have to comply with the epa regs. we'll give them a pass. it's just not fair. that was my question. and the answer is, it is a possibility. >> no, the answer is yes. if this precedent stands that presidents can make these good-faith arguments, then the game is over. then you as a body of congress have no power and all you have left is your power of the purse.

>> one more question. if permitted by the chair. what if the same scenario exists and you have a state governor who decides that as the executive of the state that the constitution empowers him or her to waive federal law or federal regulations? that it's his discretion or her discretion as the governor, executive order, send out memo to the state of whatever, i didn't say texas but it could be, just ignore this federal rule by a regulatory agency under the idea that the executive, whoever it is, and the states have the same authority. >> that would violate the supremacy clause. the president is bound and the states are bound and neither can ignore it. >> will the gentleman yield?

>> i'm out of time. i yield back to the chair. >> thank you, judge poe. the chair would now recognize the gentle lady from california ms. chu. >> mr. chair i would like to enter the record the center for american progress report that says that it would cost $50 billion to deport the estimated 5 million people who would benefit under doca and dopa. >> without objection. >> professor critics argue that even though dopa and doca have individualized criteria that officers have to use on a case-by-case basis, the high rate of recruital shows blanket approval of these cases. professor, you served as chief counsel of the department of homeland security for several years, including during the time when doca started. i'm curious to hear what you learned about the adjudication process of these cases. i understand that uscis reports a 95% approval for docs

applications. can you explain why there is this high approval rate, and whether it's appropriate or not appropriate to conclude that officers are not making individualized assessments? >> thank you. at first blush i agree that 95% sounds high, but it's not when you think about who is actually applying for doca and dopa. if you're an undocumented immigrant and in addition you have some other negative conduct in your background, there are at least two things you're very unlikely to do. first of all, you're not going to initiate contact with the government and say this is my name, this is where i live i'm undocumented and i also have this other negative thing in my background. and here are my fingerprints so that the fbi can do a background check on me. you're not likely to do that. second, unless you're independently wealthy, and not many of these folks are, you're not going to send the government a check for $465 for something you're very unlikely to receive. for both reasons, this tends to be a very self-selecting population overwhelmingly people with rock solid cases and

therefore the high approval rate in no way is evidence of these solutions being rubber stamped. i would add quickly the notion they're being rubber stamped is quite a surprise to the 38,000 people who have received denial notices. >> thank you for that. professor, congressman dates through this secretary of homeland security the national immigration enforcement policies and priorities. thus, in doing so, the secretary has directed the agency to prioritize certain categories of people over other categories. in the texas versus u.s. case, judge han nonseems to accept that prosecutorial discretion. but notifying individuals they are not an enforcement priority. isn't deferred action in and of itself a form of exercising prosecute to recall discretion? how would you counter the judge's reasoning?

>> i agree. i think you're right. deferred action is an exercise of prosecutorial discretion. the only thing that distinguishes it from some exercises is that the government is giving the person a piece of paper saying this is what we have decided to do. i think with respect that judge hannone has confused the question whether deferred action is legal with the question of whether these other benefits are legal and once deferred action has been granted. if he objects to those other benefits, for example, the ones codified in the statute or regulations, properly what he should be doing is advocating for a change in those laws. but the president did not touch any of those. it's just deferred action. >> professor in judge hanan's opinion, he argued he did not allow -- did not allow the public to comment about the new dopa program. can you walk us through whether dhs was required to follow the

administrative procedures before implementing the dopa program? >> yes, thank you. the apa notice and comment requirements by statute do not apply to general statements general agency statements of policy, which the supreme court has expressly interpreted to include any guidance that the agency wants to give about how it plans to exercise one of its discretionary powers, which it has done here. so what this really turned on in this case is whether you believe dhs when they say we're exercising real discretion. the judge concludes they were not but the only evidence cited was an unsupported statement by one uscias agent whose support was simply they're being decided by service centers which is where the vast majority of aadjudicatations are being decided and therefore must be getting rubber stamped. that simply doesn't follow. the adjudicators at the service

centers and i know this from personal experience take great care to go over the documentation carefully, there are fbi background checks and so on. and if there is any case in which they think there would be some use in conducting the personal interview and they can and will refer the person to an interview at a field office. those are careful adjudications. i don't know where he gets the idea that they are being rubber stamped. >> thank you. i yield back. >> i thank the gentle lady from california. the chair will recognize the gentleman, mr. moreno. >> thank you, mr. chairman. i am sorry i wasn't here a great deal. but i have several hearings going on at the same time. professor, as a prosecutor i had the authority at the state and federal level to use prosecutorial discretion but only on a case-by-case basis. on an individual basis, not for

class. i couldn't simply say if i wanted to, those individuals that are driving under the influence, and even though they're above the .08 those that are below .01 i'm not going to prosecute. would you agree with that? >> yes. >> the president's deferred action as far as i see it from a legal perspective, is simply saying that i'm not going to prosecute now. but i may down the road, and i may not. so wouldn't you agree with me that those that are here, that the president wants to defer deportation, are violating the law. >> congressman i think now i answered your first question too quickly. i should have said yes, but. as long as discretion is left to the individual officer to decide whether to initiate prosecution in the case that you've described, then it does seem to be perfectly legal. and i was understanding your

hypothetical to mean there was no discretion. in this case, there is. the secretary has repeatedly and explicitly told the officers that even if the threshold criteria are met they are still to exercise discretion. and, in fact -- >> sir, with all due respect, i'm not hearing that from the officers. what i'm hearing from the officers is the direct order do not detain these individuals. let them go. and again, i'm going to go back to the issue of on an individual basis, i say, yes there is discretion. but the people that are here are here illegally, or else the president would not have to issue an order saying we're going to defer this. so that is the class of people. that is -- millions of people. and therefore, from a -- you're an expert in these areas. from a prosecutor's point of view, and from even some defense attorneys' point of view i've spoken with it goes beyond.

what was intended concerning prosecutorial discretion. another issue i want to bring up with you concerning the way we operate here. now i'm sure you know, but the media has not been pursuing it that the house of representatives has passed a homeland security bill, giving the president $1.6 billion more than he asked for. $400 million more this year than last year. so the only issue is that i hear from the administration that we want to shut down homeland security. i would beg to differ with you, and i think common sense dictates, that if you're giving more money than the president asked for, that would fund homeland security, isn't the fact of shutting the government down it's the fact that the president has made it clear that he wants the deferred action, and congress has said no we're not allowing you funds to do

that. what say you? >> well on the first point let me observe that uscis has many thousands and thousands of adjudicators, and if one of them told you we are not allowed to use any judgment in deciding whom to prosecute and that person is directly violating the secretary -- >> it hasn't been one. it has been many. and it's been multistate. and i have a little concern about the information i'm getting from the administration concerning what i'm getting to the front line people. attorney general. you want to weigh in on this? this prosecutorial discretion? >> thank you congressman. you know, i think you've -- it's great to go back directly to this point. because -- has spoken about this. they know you need a case-by-case basis. and they're basically making a mockery of all of this by using these magic words. i don't mean to attack the professor here since he was

formally in this job. but, you know, they're stating that they're doing this. but there's just no way with this kind of volume, they are, with the percentages that have been approved, while professor discusses self selection, as it said in judge hannon's opinion -- no one -- the only 5% not making it through because of procedural errors. there is still not individual case-by-case basis. you guys have all the authority in the world. that would be the next question, is to pull up a bunch of line agents and find out whether or not it's true that individual discretion is happening. and i find it just impossible to believe. >> sir -- >> just guessing. >> my time is has expired. i yield back. thank you, chairman forfeiting in here. >> the chairman recognizes the judge from florida mr. deutsche. >> thank you, mr. chairman. in less than three days the department of homeland security is going to run out of funding.

at that time operations will be scaled back and others shut down. cyber attacks in north korea won't shut down. the recruitment of more terrorists by isis won't shut down and gang violence below our southern border won't shut down. this congress is on the verge of forcing over 100,000 dhs employees to work without pay. put another 30,000 employees on furlough. they are tsa agents and port inspectors, disaster relief staff and intelligence experts, coast guard members and border patrol officers. my question is is this how the new republican congress treats people who report to work every day to protect our country? these americans have mortgages to pay children to support, they have homes to keep warm car tanks to fill up and local businesses to support. homeland security funding has nearly dried up for one simple reason. some members of the majority are more concerned with pleasing the anti immigrant fringe than paying the men and women who go to work every day, protecting

the security of our nation. they're holding dhs funds hostage. their demand that we mandate the deportation. that we mandate the deportation of thousands of students and young people who arrived here illegally as small children. that we deport immigrants who as small children never chose to break the law from the only home they have ever known. now, with little time left until our homeland security funding expires, this committee is using precious time on hearing on whether the president's immigration executive orders are constitutional. since the founding of our nation questions involving the constitutionality of executive actions have been heard and resolved by the judicial branch. and questions on whether the president's executive orders on immigration are constitutional are being heard in court as we speak. i happen to believe the president's executive orders on immigration are constitutional. but i also understand that some of my colleagues disagree. i respect that. still, the fact remains,

defunding dhs will not advance my republican colleague's stated goal of nullifying these executive orders. defunding dhs will not ramp up deportation. on the contrary, forcing border agents and immigration court officials to work without pay. or to go on furlough. most likely, slow down deportation. now, my republican colleagues want to border security and enforcement approach to immigration policy. guess what that's the policy that's been in place for years and it's not working. even with the record-breaking deportation numbers of this administration. it is logistically and financially impossible to locate prosecute and deport 11 million undocumented immigrants in the united states. like other law enforcement agencies immigrations and custom enforcement must work with the budget it is handed. that means exercising

discretion. choosing which deportation should proceed and which should be put on hold, or as the president calls it deferred. do we deport a member of a gang or college student who arrived here illegally when she was 3? do we deport the mother of an american child? or do we try to keep the families together? these are the questions that republicans in congress have refused to answer, year after year after year with a comprehensive immigration reform bill. these are the questions that my republican colleagues left president obama to answer with his november 20th executive orders on immigration. the president's executive orders don't change the law. they're temporary. they simply assure undocumented immigrants living, working and raising families in our communities that they will not be deported before someone with a fellow or serious misdemeanor. we should be working day and night to keep the department of homeland security funded and fully operational instead of

holding hearings on questions that the courts are in the process of answering. the safety of the public and the well-being of our communities must be the priority of immigration enforcement officials, and i humbly suggest it should also be the priority of this congress. thank you, mr. chairman. i yield back. >> i thank the gentleman from florida. the chair will now recognize himself. general, i want to make one observation before the professor and i have a conversation about prosecutorial discretion. my colleague from new york, mr. nadler suggested that you were naive for thinking that the 22 separate times the president said he lacked the power to do what he did, you and i should have realized that that was a political comment and not a legal comment. and so what i would ask you to please consider is requiring a disclaimer to go beneath every comment made by an elected official so we can know going

forward whether he or she really means it or whether it's just for political ex paid yen see. because i mistakenly thought the chief law enforcement officer for the entire country would mean what he said when he was making a legal observation, and it was just news to me from mr. nadler all of that was just political grandstanding. so if you can work around the first amendment, let me tell you, and require disclaimers -- so we really know whether a candidate or an office-ledholder means what he or she is saying, it would be helpful to me and relying on what the president said. now, professor, what are the limits of the doctrine of prosecutorial discretion? >> well, the main limits are the ones i laid out with more detail in the written statement. but to summarize briefly, one, the president cannot refuse to spend resources congress has provided. >> so if we fully funded everything he wanted with respect to dhs he could not

suspend any deportations. >> that's -- i think that is an unanswered question. >> well, that's what you just said. >> no, i said that was one limit. >> well, but i just removed that limit. so if we were to fully fund that, he would lack the discretion to not enforce that law. correct? >> i suppose that's theoretically possible, just never decided by a court because it would be rare to find a law enforcement agency -- >> what i'm trying to get at, professor, if your district attorney decided that he or she was not going to enforce or prosecute any heroin cases, because he or she thought the war on drugs was a lost cause other than elections, what remedy would the legislative branch have if they disagreed strenuously with that executive branch employees -- wholesale refusal to enforce the law? what remedy exists for us? >> the legislature could very

specifically supersede the decision. there's nothing in the statute that specifically supersedes the president's priorities. >> so you mean the legislative branch could put in that statute the word "shall." you shall prosecute. >> that would not nearly be enough. >> well, what should we put in our dhs funding to let the president know. help write that bill. >> i don't know if i could draft it -- >> take a crack at it. >> the legislature could do something similar to what it did when it mandated specific priorities. there is language that specifically mandates national security. >> why does the legislative branch have to pick priorities? why can't we say we want the law enforced? >> i was offering one option for how a statute could be drafted. >> you would agree with me the ultimate remedy is the ballot box. his or her voters can vote them out, right? >> well yes and no.

there are certain instances in which plaintiffs have been found to have standing to challenge prosecutorial discretion. >> do you think the consequences of the elections might have been why the president waited until after the mid terms to issue his executive order as opposed to before it. >> yes and no. i'm not sure if the outcome so much as the desire to avoid the kind of political confusion that wag a result -- >> let's not political confusion, professor with all due respect. this is legal confusion. i'm trying to understand what the limits of prosecutorial discretion are. there are three categories of law. certain laws that say you can't do something like possess child pornography. there are certain laws that require you to do something, like register for selective service, and then laws that congress passes which require the executive branch to do things. for instance turn in a budget by a certain day. is your testimony the executive has the power to use discretion in all three categories of law?

>> it would depend on the facts. >> give me a fact where a president can refuse to do something congress tells him or her to do. that is not prosecutorial discretion, with all due respect, professor, that anarchy. >> i agree with you, congressman, congress, if specific enough, could foreclose the type of exercise of prosecutorial discretion. my only point is they have not done so. >> let me ask this, because i'm out of time. can the president suspend all deportations and if not why not? >> that would contravene both passing the immigration and nagsality. >> my answer is the same as earlier. it's impossible to answer without the empirical knowledge of whether that would leave him with the ability to substantially spend the resources congress has provided. >> what i would love, if you can, and again, i'm out of time.

i want you, and maybe it's a suggestion for your next law review article. i want to know if congress fully funds -- fully funds dhs, does the president then lack the discretion citing the apportionment the of resources to exercise discretion. would you -- >> that question has simply never been answered. >> i would love for you to take a crack at it in your next law review article, if you would be willing to do so. the chair would recognize his friend from new york, mr. jeffries. >> thank you mr. chair. and let me also thank the ranking member of the full committee for his presence here. i want to start with the attorney general. and perhaps further explore this question of prosecutorial discretion in the context of the president's executive order. so there are approximately i believe 11 million undocumented

immigrants in this country. correct? >> correct. >> and presumably one of the options that some in this congress would like to see who disagree with the president's executive order is the deportation of all 11 million undocumented immigrants correct? that's amongst the range of ideas within this congress this committee. there are some presumably, who would like to deport all 11 million, is that fair to say? >> i'm not here to represent any other members on this issue mr. congressman. >> do you think that's a reasonable solution? >> you know, we have entered this lawsuit as 26 attorneys general. because we believe there are serious pressing constitutional issues at stake. and as i've stated as many ways as i can for us this is not about politics. and it's not the job of the attorney general to wade into this political realm, and it's

not something i plan on doing. >> thanks a lot. now congress has never allocated the resources necessary to deport all 11 million undocumented immigrants. that's an accepted fact nobody from the far left to the far right argues otherwise. so if the president and the department of homeland security lack the ability, because we congress has not given him the resources to deport all 11 million undocumented immigrants, doesn't the department of homeland security have the discretion to prioritize the deportation of some undocumented immigrants over the deportation of others? >> mr. congressman, the 26 states that have joined this case along with at least preliminarily the federal district judge in texas, you know believe that there are limits in this area. and, you know, we've kind of gone over them ad nauseam, but

the president has overstepped his constitutional authority to take care and execute. and as we discussed failed to do case-by-case. >> okay, thank you. i appreciate that. >> case by case analysis. >> i -- want to move on. let me make the point that i think should be self-evident. if congress has not given the president the resources to deport all 11 million undocumented undocumented immigrants, it seems the department of homeland security should have the ability to prioritize the deportation of felons over the deportation of family. that's a reasonable approach since congress has not seen fit to give the department of homeland security the ability simply to deport everybody who is in this country on an undocumented basis. now, in nevada, the office of attorney general is not

self-funded, correct? >> i don't -- >> provided -- your funding is provided by the state legislature, true? >> the general fund, yes. >> okay. so you join this believe on january 26th. and you announced that decision consistent with your views as it relates to the nevada constitution. you didn't consult with the governor when you made that decision. correct? >> mr. congressman, i'm independently elected attorney general and it is my job -- >> i'm not arguing that you should have. i'm just establishing the fact that you didn't. correct? >> you know -- >> its pea a matter of public record. i just want to make sure i'm clear and you're clear and the committee's clear. you didn't consult with the governor. now -- >> well as is in the record our offices certainly communicated about this issue. >> i appreciate that. if i could enter into the record a wall street opinion piece "nevada's right choice on

immigration" in support of your position and ask unanimous consent to do so. february 2nd article. >> without objection. >> it says a very public dispute broke out last week when nevada attorney general went against the governor's wishes and joined a lawsuit filed by 25 other states. the two of you are both republicans who agreed the current immigration system is broken and that comprehensive reform is necessary but the governor opposes litigation and has suggested that new immigration reform legislation is the best way to proceed. that's his perspective. i would assume that even though the two of you disagree even though this republican governor believed that you took unilateral action would it be reasonable, based on his disagreement with your actions to defund the office of the nevada attorney general? >> plpmr. congressman, there's no way something like that would happen. obviously the attorney general's

office is the top law enforcement for the entire state. we have many, many statutory duties to protect our citizens from law enforcement, to consumer fraud. a lot of this is much to do about nothing. the governor and i work together on many many issues every day. i am the legal advisor to all of our agencies, as well as all of our boards and commissions. so this is an unfortunate one issue. but like i said, there is no issue with the governor and i. >> my time has expired. thank you. i would hope you would agree based on that same logic even though there is a disagreement between president democrats in congress and congressional republicans, it would be unreasonable to use your frayedphrase to defund such an important agency, the department of homeland security, simply because of a political dispute. i yield back. >> thank my friend from new york. before i go to the gentleman from idaho i would say having

an independent attorney general is a great idea. something we ought to try on the national level at some point. with that, mr. labrador. >> thank you, mr. chairman. i would like to point out that my good friend mr. jeffries is comparing apples and oranges. there's nobody in congress who is trying to defund homeland security except for the democrats. we actually funded fully the department of homeland security except for the president's illegal and unconstitutional action. but it seems like my friends on the other side are willing to put 5 million illegals ahead of the safety and security of the united states. i just want to make shahthat clear because we passed a bill that fully funds -- in fact, as was previously stated, not only fully funds but funds above the levels that the president asked for. we completely funded the department of homeland security. the only people that are stopping this funding are democrats in the senate that are not even willing to listen to an

argument why we should have this bill passed through congress. there's nobody here on my side who's trying to defund it. i listened to your testimony. i've been sitting here the whole time. i understand you're a professor of law, and you also were the chief counsel for uscis. is that correct? did you ever practice immigration law? did you ever do private practice? >> no i did not. >> i did 14 years of private practice in immigration law. i defended and represented a lot of people who were in legal jeopardy in the immigration system. what do you think one of the attorneys working for i.c.e. or one of the attorneys working at the time for ins would have said if i would have gone up to them and said mr. attorney or mrs. attorney, could you please give me prosecutorial discretion because you guys don't have enough funds to enforce the law

in the united states? what do you think the answer would have been to my little office in idaho? >> if the only reason were that they don't have enough funds, the answer would probably be no. but of course the real question is we don't have enough funds and here's why i think my client should be a priority. in that case i would hope a reasonable i.c.e. agents -- >> i asked that every time. you know what the answer was every single time? "no." because they never did that, because you're confusing what's really happening here. i've been listening to you very clearly. can you name -- you said -- your own words were that there is direct criteria. there is a threshold of criteria. can you name one case that has been put in deportation or removal proceedings, just one case that's been put in deportation or removal proceedings, that has met the threshold of criteria? >> i have to answer in two parts, i'm afraid.

>> just one case. >> no i understand. but i have to explain. judge hannon specifically ordered the government to gives some examples of cases in which people were found to met the special criteria but nonetheless were denied -- >> have you provided that information? >> that's what i was leading up to. not only did they provide the information but from neufel in his sworn affidavit offered numerous cases. >> professor, can you address that question? >> the neutral declaration, gang member ships or gang affiliation or fraud. the only example the department of justice could put forth when defending this policy was gang membership or fraud. those are criterion zone one. gang membership would make you a high priority for national security risk. and fraud, don't think there's much discretion saying someone committed fraud as an obstacle

of the tribunal. >> saying fraud in the application or previous fraud? >> previous fraud for lying on the application. the lying on a previous application. these are the only examples brought forth. >> those are criteria, especially the fraud that would make you ineligible for any form of release. >> that has nothing to do with a case by case discretion. there's not much there. >> let's talk now about, you say that it is not illegal to tell a person we're not go to proceed against you. right? that's not putting you in deferred action. i think you've been misleading us a little bit. i don't think you're doing it on purpose because i've really enjoyed your testimony. but there is a difference between not deporting somebody not putting somebody in removal proceedings, and putting them in deferred action. is there not? >> yes. but the difference is that in the latter case you are

affirmatively telling them that. >> no. the reason you are doing that is because you want to grant them benefits. that's the main difference. i had cases where they were put in deferred adjudication, and it's because there were some criteria that they met. they were either helping the prosecutor, they were helping the local police they were some criteria that they needed to stay in the united states so they could be granted affirmative benefits. that is why we have deferred adjudication. sometimes immigration chooses not to deport somebody. but the reason you put somebody in deferred action is to grant them a specific benefit. that's what this administration's doing. this administration is deciding not just -- we're not going to deport people. they're saying we want to put them in a criteria that, under the law, they're going to receive specific benefits. and they're doing that. so could this president say tomorrow that, "i want every person who's here in the united states illegally from mexico, i

want to put them in deferred action." could he say that? >> my gut instinct is to say that that would be very difficult because two turn on the empirical question whether after doing so he was still able to substantially spend the resources -- >> you keep saying that. they can always spend the money. that's the most ridiculous statement i've heard. they will always spend the money. the question is does he have the discretion to just take one category of people and say that i'm not going to deport you. that has never been done in immigration. it was always done on a case by case basis. and at this point this president has decided no the to do it on a case by case basis but to categorize groups of people and put them into a category that grants them benefits. that's illegal -- >> the gentleman is out of time. the professor may answer if he would like to. >> sure. as you know congressman, especially from representing people in the past there are lots of reasons people are

granted deferred action including a range of humanitarian reasons. but as to your last example where he granted only to nationals of mexico, i would just mention that there are lots and lots of cases in which presidents have granted functionally equivalent discretionary relief to people based solely on their country of origin. that would present a close question. >> based on tps and something that the law already grants the president the tlortauthority to do. >> the gentleman is out of time. i thank the gentleman from idaho. the chair now recognizes the gentleman from illinois and apologize for overlooking him last time. it was inadvertent. >> i know that, mr. chairman. good to be with you all this afternoon. could i have mr. chairman, my staff assistant hand out the mem memorandum that was november 4th to all of our witnesses? >> yes, sir. >> thanks.

>> while that's being done, could i ask unanimous consent to put in the record the declarations of donald neufeld, the i.c.e. director and the cb commissioner? >> without objection. >> thank you, mr. chairman. first of all i think we should use this document because it's letter written in 1999 signed by henry hyde and lamar smith, bill mccullum and series of other outstanding republican chairmen of this committee in which they right to then janet reno saying, you guys got to promulgate some discretion here. you've not done it enough and you have the ability and the right in law to do exactly that and you haven't done it. i just want to state for the record that not our party, but the majority party has stated and stipulated through this memorandum and -- that they believe in discretion and that

the administration should use discretion. and in the memorandum just for the public, it says you have the discretion to alleviate some hardships and wish to elicit your views as to why you have been unwilling to exercise your authority in some cases. we ask you to review the 1996 -- >> would the gentleman yield? >> i can't. >> you can't or not possible or don't want to? >> not right now. but -- i'm in the middle of reading -- >> you're reading a letter -- >> the gentleman from illinois controls the time. will he yield? >> i can't. i was -- if i could have that time back, i was trying to have a conversation -- >> i'll be happy to give you the time back if you put it in proper context -- >> the gentleman from illinois controls the time. >> you got three witnesses to one. >> because when you left the room you weren't talking about -- >> the gentleman from illinois controls the time. >> it's 3-1. it's fact. >> well 3-2 right now. >> 3-2.

okay. >> just so the gentleman knows we stopped the stock at 2:55. gentleman from illinois. >> i was trying to have a conversation but -- just reading a memorandum! fine. it's here. i mentioned this into the record a dozen times so everybody should have a copy of it by now. everybody should know i'm bringing it up each and every time anybody talks about discretion. because it's established. henry hyde illinois. chairman of the committee signed this. lamar smith. no pushover when it comes to those illegal immigrants. and how the american government should treat them. so says indeed ins general region's counsel has taken the position apparently well grounded in case law. ins has prosecutorial discretion in the removal proceedings. see attached memorandum. optimally, removal proceedings should be initiated and terminated only upon specific instruction from authorized ins

officials issued in accordance with agency guidelines. ins apparently not promulgated such guidelines. so let's make it clear. it's well established in the law. unlike other parts of the federal government that there is discretion when it comes to the application of the law and immigration law. so i just want to say -- and the attorney general, i have a definition here of politician. are you a politician? because i have webster's. are you a politician? >> i am an elected representative yes. >> you are pea a politician. right? i'll find it. it will be say elected representative. i just wanted to get that. you run for public office. so i can find you other definitions of politicians. just so that we're clear you're in the politics business. right? and that's what you do and that's how you earn a living. so, i just came here to say, look. the supreme court is going to answer this for us all.

that's why we're a nation of laws. right? and we all know where this is going. i'm not a lawyer but i happen to know this is going to go to the 5th circuit. it's a very -- they picked the most conservative judge they could possibly find to hear this case. they didn't come to illinois with this case. right? they didn't go to new york. they didn't even go to nevada to pick the case. no. they went and they found a judge who had already -- not specifically but in his district. they went to southern texas. so look. this is going to be decided. but i just want to make it clear because there seems to be some confusion, mr. chairman that people keep saying that what the president did was unconstitutional. and the former attorney general now governor another politician in texas who is the attorney general, tweeted it's unconstitutional! any of you read the decision -- any of you read the decision

that said it was unconstitutional? nope. yet you have the governor of the state of texas a former attorney general saying it is unconstitutional. you see the parameters we're dealing in. we're dealing in political parameters on what should be an issue about how it is we deal with an immigration system. i just want to go back to my colleagues who have spoken earlier. the fact is, 4%. many of my colleagues like to argue the following. well, why don't you just round up all the criminals and deport them them. because we only provide sufficient money for 4%. let me repeat that. we only provide -- and no one has ever come here to suggest that we should provide any more money. even my friend -- i'm sorry you went. he said, oh mexico. why are we always talking about mexico? why did that federal judge only describe the border? what happened to the border at lax? what happened to the one at o'hare? what happened to the one in new york city?

kennedy? all of those are point of entries in which millions and millions of undocumented immigrants have come into this country undocumented overstayed and are part of the 11 million, therefore can be provided relief for under the president's order. my point is you're not going to deport 1 1 million people. this is a political case. it will be judged on its merits in the supreme court. i will just end with this because the chairman's been -- where is the chairman? i want to find a solution to the problem. not keep having hearings here where the four distinguished jurists who all know a lot about the law are not going to decide the case. so why don't we find a solution to the problem of our broken immigration system so that we can provide solutions to people because i'm sure most of us would agree we should go after gang bangers, we should go after drug dealers rainpists and murderers and the united states is caught up in a broken immigration system. and lastly this is a very

perilous place for my friends in the majority. because i have 5 million american citizen children who are never going to forget for generations how it was you treated their mom and their dad. how it was you treated their mom and their dad and if you treated them in a cruel manner. that's a community. we're not a community in which the undocumented and the documented kind of live in a capped society. you know what? fourth of july we're having hot dogs and hamburgers and on thanksgiving we're having our turkey. >> i am trying to treat my friend from illinois in a good way. >> i apologize. >> you do not need to apologize. i thank the gentleman from illinois. the chair now recognizes the gentleman from texas. >> thank you, mr. chairman. i'd like to yield my time to the gentleman from south carolina mr. collins. >> i think he's from georgia.

zblm >> is there a difference? >> he's got warrants outstanding. he's from georgia now. zblm >> we did this last time. it's ground hog day, here we go again. letter spoken of -- which i went through this about a month or so ago, was dealing with legal permanent residents. it was not dealing in the discretion of illegal or crossing. it is not dealing in this issue. basically to take a letter at a time when things were taken out of a '96 legislative reform in dealing with this, let's at least be fair with the letter. to come up here and to use the letter and say people who are no longer in this body, even some who happen to be here just not on this committee to say that is just wrong. i believe the gentleman from illinois has a good heart. i believe he's dead-wrong on many things dealing with this. this is one though -- let's at least have an honest discussion about this. let's not at least throw in

names so you can basically appear in an argument that's not there. this is what's wrong with this argument. this is what's wrong the american people don't get. i appreciate the gentleman yielding. with that, i yield. >> thank the gentleman. not sure if my faux pas offended south carolinians or georgians or both. i thank all the witnesses for being here today. enjoyed reading your testimony and hearing some of it. professor, it's very clear to me that you obviously think the president's november 20 executive order was constitutional. but it also appears to me that while you think that the president's action was lawful from reading the tone and tenor of your testimony and your articles, it also seems to me that you want him to be right.

>> i do. i believe in what he's doing and think he's taking sensible action. so yes, i confess to that. >> so do you consider yourself an advocate for the rights of people that are in this country illegally? >> well, i consider myself an advocate for the legal rights of all people whether they're here legally or not. everyone has certain rights. >> okay. so do people who come across our borders without permission are they here illegally? >> yes. >> okay. is there a reason that you never refer to them as illegal aliens or folks that are here illegally? >> yeah. i have referred on occasion to people who are here illegally but i don't like the phrase "illegal alien" because i don't like the idea that the word "illegal" would be used to describe a person. they acted illegally, they entered illegally. i have no objection to that. but the phrase illegal alien offends many people because you

define an entire person but one act. >> so to the chairman's prior question, the time that i heard your testimony, is the issue here really a constitutional one or is it a budgetary issue? in other words if we remove the limited resources question and issue, does this all go away in your opinion? >> i think that's a very thoughtful question and it does tie in with the thoughtful question that was asked earlier. i don't think you can separate the two. whether this is constitutional depends on whether the president has a justification for choosing the priorities that he has and one of the factors that has informed those priorities is the reality of limited funds. >> professor i think i know your thoughts on judge hannon's issuing the injunction. i think that's very clear. but i missed some of your testimony. have you opined on whether or not you think the administration has violated the apa? >> i have. i do not believe they have violated the apa. the basic reason which i can

state succinctly is that the only argument made for why the apa might be thought to apply would be it didn't really involve the exercise of discretion. for all the reasons given in my written testimony, i think that there's simply no factual support in the record for that conclusion. >> okay. what your written testimony that was provided doesn't address is the government's response in seeking a stay to that injunction. do you agree that the government's on solid legal footing there? >> i'm sorry. requesting the stay? >> yes. >> i do. a stay is a discretionary judgment but certain factors inform it, one of which is how likely you are to succeed on the merits, how much damage there would be to either side if the stay was not granted and so on. i think reasonable minds could disagree about the stay. my own view is that it would make sense to grant it. >> well, can you explain to me professor, from your perspective, how our federal

government is irreparably harmed by not conferring benefits on what they refer to as third parties and what i would refer to as folks that are in this country illegally. can you explain to me how the government would be irreparably harmed? >> well, in the stay motion the government asserted two different harms. one harm is simply to the government's authority granted by congress to establish national immigration enforcement policies and priorities. the other harm which is much more tangible though is that at this point the government has already invested resources in hiring adjudicators, leasing physical space and so on that would eventually be recouped by the revenue that comes in from the requests. but if that were to be shut down, the money would be wasted and in the meantime the government does have to continue its preparations if it is to resume this on schedule. >> so the government asserts your point "when these harms are weighed against the financial injuries claimed by

the plaintiffs the balance of hardship tips decidedly in favor of the stay." i hear you saying that you agree with the government's assertion with that respect. >> you are out of time but you can answer the question as succinctly as you can, professor. >> sure. i strongly disagree with the idea that texas is going to lose even one penny because of this. several reasons. first of all, they never allege that they're going to have to hire a single additional person to process these driver's licenses. it is a marginal additional cost, not the amortized cost that should count. >> in fairness professor, all these folks if they were allowed to stay under the president's executive order, they could apply for texas driver's license. >> yes. >> and each of those would come at a cost to the state of texas of $130 per license, times hundreds of thousands of folks in the state illegally. >> two things. >> as quickly as you can. i'm already two minutes over. >> okay. i'll go to the second point. second point is that while

texas, to its credit offsets that cost by the revenues it would receive from the applications, still comes out to a negative if that's all you take into account. but what they don't take into account is what so many empirical studies have now demonstrated which is their tax revenues will increase dramatically as a result. there's even been a study that specifically finds the same thing to be true for the state of texas. they will gain financially quite a bit from this. the third thing is that if you adopt this theory of standing, just think for a moment about what it would lead to. if the mere fact that when a federal benefit is granted, someone could then apply for a state benefit were enough to confer standing then every time uscif grants anything to anyone, the state of which that person is a resident could then come in and say, we have standing to challenge that. . surely that's not what the standing doctrine was designed to accomplish. >> thank the gentleman from texas. chair now recognize the gentleman from michigan mr. bishop. >> thank you mr. chair. first of all, i want to thank

all the witnesses. it's been a very enlightening hearing so thank you all for being here today. we've had several exchanges from members regarding this idea of prosecutorial discretion. as a former prosecutor myself, i understand and appreciate the need for prosecutorial discretion when it comes to ensure something justice. that's the role of the prosecutor. what, however, i do not understand in this context is how this remedy that's been created, deferred action exceeds what we now know as prosecutorial discretion and how in fact professor foley, you indicated that the president's immigration order is unconstitutional for three reasons. this was the second reason. that was the creation of the remedy of deferred action. can you expound on that and tell me how it is different than

ordinary prosecutorial discretion. >> yeah. it is a really great question because deferred action is something that congress has authorized in specific statutes for specific populations in the past. so there are some statutes out there that say that x, y or z is entitled to deferred action. now normally when something like that happens, if a court looks at the grant of deferred action in another area let's say a, b or c, the court would say, well, you know the fact that congress clearly knows that deferred action exists and has granted it for x, y and z necessarily implies that they don't intend to grant it for a, b and c. so that's point one. the other thing is that deferred action has been granted administratively not by congress in statute, but by the executive branch on several occasions in the past. in my written statement i elaborate on four instances that the olc relied upon in blessing the constitutionality of the

president's action. for every single one of those, except for the widower/widow one that president obama took in 2009, all three of them involved a situation where congress had already passed a statute that gave this group legal status and deferred action was given administratively as a bridge until they could achieve the processing of that status. so in those situations, you can see that granting administrative deferred action is perfectly consummate with congressional will. now the widower/widow one i don't think was legal frankly, because that was granted at a time when the applicable statute did not grant that kind of deferred action to widows or widowers. in fact several months after that administrative deferred action was granted, then congress amended its statute. but at the time the grant, the

deferred action was taken, that statute did not exist and therefore i don't think you could say it was consummate with congressional will. now once congress passed that statute, then it is game over and at that point the administration receded from its administrative grants of deferred action, just said it is none of our business anymore. congress has already legislated. we'll never know whether that was legal or not because it got mooted out by a subsequent statute. >> thank you very much. professor blackman? >> the key question, is the president acting consummate with congressional policy. the president has to look to is congress acquiescing to this. there were several incidents in the past where congress has being a ewessed. but in each case of deferred action it serves a temporary bridge where there was something that happened. good example. in 2005 when hurricane katrina

hit the gulf, a lot lf students were studying at universities. their schools were shut down. they lost their status. the president said i will give you four months to enroll at another university. if you take that time to enroll in another university, you will not not. it's not that beneficiaries will not get anything after their three-year period is up. nothing. the only way they can get a visa is if their child turns 21. there's no opportunity for relief. this is not really a tunnel, it is more of a bridge to go through the law. i think that makes it inconsistent with the congressional policy. >> thank you very much. >> thank the gentleman from michigan. the chair would now recognize the gentleman from iowa mr. king. >> thank you, mr. chairman.

i thank all the witnesses for your perseverance here today, too. this is a relatively long hearing for us. i've picked up a lot sitting here listening. i wanted to make a point here and then move on to a broader one. that's this -- some years ago i went through an exercise of what is congress obligated to do under article three. it just has to go back to about 1802 when there were a couple of federal districts abolished by congress, court districts. i happened to read through all that debate so i began to ask this question. what we're obligated to do under article 3 is produce a supreme court of the united states. we could conceivably abolish all of the districts. have a chief justice but we don't have to fund a building or a staff, he could be at his own

card table with his own candle. that's what congress is obligated to do. i would suggest that article 3 is pretty limited if congress decides to assert its power and authority over it. if nothing else the work load would stack up on chief justice roberts. that was just an exercise in constitutional discussion, morals kind of meta physics. i just went down through article 2. since the president's usurping article 1 authority, what authority does the president have under article 2. commander in chief of the armed forces. congress forms the armed forces. they may not exist. at least theoretically. he may require an opinion of the principal authors of each executive department. he may but they may not be departments for him to require an opinion of. then he shall have power to grant pardons and reprieves. he has with the advice and consent of the senate treaties and appointments, but then he's subject to the authority of the

united states congress. so in the end the question comes down to what enumerated powers does the president have independent of congressional approval? that turns out to be six. he made pardon. he shall deliver the state of the union. it's not an address, it might be in a letter as it was under the early presidents. he could send a letter to congress and meet that requirement. he shall recommend legislation. well, he does that without having to be prompted very much. he may convene congress. he may adjourn but so may congress adjourn. that's really not a power that's effective. he shall receive ambassadors and ministers. that means that the president then shall be the head of state and conduct the functions of a head of state, at least diplomatically. the last one is this wonderful one -- he shall take care that the laws be faithfully executed. so when you look through that, the only two that have any power really at all is the power to pardon which could be

significant under certain circumstances, but the power and the obligation to take care that the laws be faithfully executed. i don't know that i've heard an argument as to how the president might be doing that under the circumstances that we're discussing here today. not only that, not only is he violating his own oath of office, it's very, very clear that he has said i'm not going to enforce the laws that i don't want to enforce and, by the way, congress, i'm going to recommend legislation to you and if you don't pass that legislation, then i'm going to implement it by my executive edict. not only his executive order, executive edict. and i'm going to take care that the laws i don't want to be executed are not, including the session that requires that those who are interdicted by law enforcement and immigration be placed into removal proceedings. shall be placed into removal proceedings. we have a president who says they shall not. he has ordered his executive branch to violate laws. by the way some of this is not under litigation in the case we're talking about over the

november 20th edict but it is under edict in the crane versus johnson case filed a couple years ago, crane versus napolitano. i'd just ask this question. that is, what if congress decided to usurp presidential authority? what if congress decided, the president's not doing his job he's not keeping his oath, why don't we form a justice department and fund a justice department and direct an order at justice department. i would ask first a question of professor foley, if congress decided to do that we could enforce these laws. what would be the consequence of such a thing? >> yeah. it's a great question. i posed this before the last time i testified before the committee on the president's actions with regard to obamacare and delaying the employer mandate. the hypothetical i posed is what if the speaker of the house decided he wanted to appoint himself commander in chief. all right? but it is the same idea. right? if article 2 -- article 2 can supposedly usurp article 1 but

article 1 can't usurp article 2? it doesn't work either way. neither one is constitutional. the point about this being prosecutorial discretion just ask yourself. everybody i think on this panel agrees that the $6 million legal question on prosecutorial question is, is what the president is doing consummate with congressional will because you get to control your statutes and he has to faithfully execute them under the constitution. is what he is doing consonant with what you want and directed pursuant to the ina? i think the answer is patently that it's not consonant with congressional will. as a thought experiment, again ask yourself this -- why didn't previous presidents think they had the authority to do this? if this was so political palatable for such a long period of time for the last 30 or 40 years, why didn't president clinton do it? why didn't president carter do it? the reason they didn't do it is because no president thought they had the authority to do this because they didn't think congress had authorized. under the ina which explains why

the president went around 20-plus times and said he didn't have the legal authority to do this. by the way, the scour has said as much. a case called utility air regulatory group versus epa involving epa's carbon tailoring rule that was decided last summer. in that case the supreme court basically said, look. one of the reasons why the carbon tailoring rule violates separation of powers -- and it did violate separation of powers -- is because the epa is promulgating a regulation that flies in the face of years of understanding of what the clean air act was thought to give the authority to the epa to do as a regulatory matter. it's the same thing here. the same form of construction of congress' will should take place in this case, too. >> in the end, and in conclusion, mr. chairman, it is the people that decide the division between the three branches of government. i think they need to declare war on the enemies of the constitution. >> the gentleman from ohio yields back his time. the gentleman from florida, mr.

desantis is recognized. >> thank you. i want to make sure i have it right, professor. obama's statement 22 times that said he didn't have the authority, you meant he just didn't know -- >> he said his authority is limited, he doesn't have the authority to spend all deport deportations deportations. >> right. you deny he has claimed the authority to do what he did in november. right? >> correct. >> i think the best -- at variance with the facts. february 14 2013, president of the united states "i'm not the emperor of the united states. my job is to execute the laws that have passed. congress has not changed what i consider to be a broken immigration system. that means we have certain obligations to enforce the laws that are in place even though if we think in many cases the results may be tragic. we've kind of stretched our administrative flexibility as much as we can."

september 17th, 2013. he said "what we can do is then carve out the dream folks saying young people have basically grown up here as americans that we should welcome but if we start broadening that, then essentially i would be ignoring the law in a way that i think would be very difficult to defend legally. so that is not an option. what i said is there is a path to get there and that's through congress." those are instances not where he's saying he can't suspend everything, where he specifically is saying he's reached his administrative limit, that he's reached the limit of what he can do. these are in response to questions that specifically wanted to address some of the classes of people that he's now addressed with this latest executive action. to say as you characterize it it is completely at variance with the facts. i think it really undermines your credibility. let me talk about the political statements versus legal

statement. professor blackman, you correctly point out this is not about the courts. congress has a role. powers we have are political powers and political checks. so when the president is out saying these things, the idea that he's making political statements that don't matter when he vetoed the keystone pipeline. he didn't go it court to do that, he took a political action based on a power he had in article 2 of the constitution. madison in federalist 51. madison is not correct. in a later federalist paper said the power of the purse is congress' most powerful tool. that's perfectly legitimate that congress would restrict funding if they believe their powers have been infringed upon. >> yes. >> do you also think that the advise and consent power that the senate has is a legitimate check on presidential overreach? in other words, if the president is putting someone in a position who's pledged to continue

conduct that we think infringes on our authority, the senators could use that as a legitimate reason to deny someone an appointment? >> just six months the supreme court rebuked the administration. this is part of a very long trend. >> the courts do have a role but it is a limited role to cases and controversies. isn't it the case that there are going to be disputes between the executive and legislative branches that may not give rise to a case or controversy and thus not be right for adjudication in the courts. if you expect the courts to do everything, well then we're leaving a lot of authority out there that will essentially be uncontested if congress isn't willing to act. professor foley, you mentioned the key issue is that the executives' action consonant with the underlying law. isn't it it the law that the underlying law prohibits people who are here illegally from

having having lawful employment in the country? >> yes. the obama administration has decided to unilaterally grant them deferred action which is again, that remedy deferred action, is a remedy that congress has not statutorily specified for this population. >> the statute trumps administrative action or executive memos or anything like that. you have congress that said very clearly prohibition on employment, now the president's issuing 5 million work permits. to me that's absolutely in conflict with what congress has said. let me ask you this. in terms of somebody who could be harmed by this, if the president issues these work permits and background is that people here illegally are actually exempt from obamacare employer mandate, meaning if i'm an american citizen applying for a job somebody here has one of these work permits. we have the same skills, qualify for the same wage, the person that's here illegally actually

it will be cheaper for the business to hire because they don't have to provide the obamacare. they would have to provide it for a u.s. citizen. in that instance would a u.s. citizen potentially have an ability to bring a lawsuit challenging that? >> i think it is possible, though i have to confess that in terms of standing what the affected u.s. citizen would have to establish is "but for" the aca non-grant of eligibility. >> let's assume the employer just said, yeah. i would have hired you but i'm saving $3,000 here. i mean i have to do that. >> yeah, i think it is possible. if you had the right facts and circumstances with an affidavit filed by the employer that "but for" he would have hired the u.s. citizen i think you could establish standing. >> my time is up and i yield back. >> thank the gentleman from florida. on belaugh of all of ushalf of all of us, this concludes today's hearing. we want to thank the panelists for your collegiality with the members of the committee. felt like we were back in law school.

most of us will be waiting on our c-minus grades later on this afternoon. maybe not without objection, all members will have five legislative days to submit written questions for the witnesses or materials for the record. with that our thanks again to each of you and we are adjourned. >> thank you. tonight the supreme court oral argument in the case king versus burwell which was argued on wednesday and looked at the health care law and subsidies provided to those enrolled in federally run exchanges. that's tonight at 8:00 eastern

on c-span. tomorrow night, american indians discuss the stereotyping of their culture in sports mascots. native rights activist suzanne harjo says the washington redskins won't win another super bowl until they change their team name. here's more now. >> since the washington football team, once a great and powerful franchise, has not been to a super bowl since we filed suit in 199 22, people in my bank and on capitol hill say, you still have that curse? we said, no, no it's not a curse. it's just karma. it's their own fault. they're doing it to themselves. if they would just throw off the shackles of this name get rid of it have name change contest, everything would be wonderful for them.

and they would start winning again. i just don't think they're going to win until they do that. because it's been -- this is in the 23rd year. now that's an amazing coincidence. 23 years and they've never been back to a super bowl. in the meantime, there has been a case that has my name for 17 years, now amanda blackhorse has that privilege and burden of dragging around this lawsuit. we're just going to keep prevailing and prevailing and prevailing and more and more people across the country are seeing the error of their parents' or grandparents' ways and they're saying we don't want that, that's not who we are. and more and more native nations are saying we don't want these false identities these false personas laid on us anymore.

we're not going to take it because that's the root of a lot of our problems. people don't take us seriously because we're not taking ourselves seriously. >> that was just part of an event held recently by the hurd museum and arizona state law school on american indian stereotyping. see the entire event saturday night at 8:00 eastern on c-span. job numbers for february were released earlier today by the labor department. the unemployment rate falling from 5.7% to 5.5%. 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 slothot at a good

paying job. it is time for the president to put down the veto pen. 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 after words, former marine and war correspondent david morris on the history of post traumatic stress disorder. sunday night 589:00at 8:00 a former navy s.e.a.l. sniper. and on c-span3 the commemoration of bloody sunday when 50 years ago voters's rights advocates began a march from selma to montgomery alabama and were met by violence by state and local police. we're live with your phone calls, followed by the commemorative ceremony with president obama and congressman

john lewis. on sunday, an historical service for 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 are watching. call us at 202-626-3400. e-mail us at comments comments@c-span.org. follow us on facebook. like us on twitter. next a look at foreign policy goals for the obama administration. held by the washingtonugshington ideas roundtable this is 1:20 minutes. >> i want to introduce general powell who has been briefing me on what questions to ask. general powell, what questions should we start with? >> if you don't know i'm not going to tell you. you got a great group here. i'm sure you're going to have an excellent discussion. i think tony is uniquely

qualified to deal with the issues of the day and to answer the questions that might arise. in an earlier session, walter and i spent an hour and a half talking about these issues, but doing it in a way that's going to be for teenagers, kids, high school kids. which is where i spend most of my time with students now because nothing i could do about my past. little i can do about my future except watch it but there is a lot i can do about the real future, which is our youngsters coming along in a nation that's going to be increasingly minority. we've got to prepare these my mortgage -- minority kids for the leadership positions. i thank you for your leadership and the institute for what they do on a daily basis. now ask the question, for god's sakes! >> thank you very much general. it's my pleasure to introduce the deputy secretary of state, tony blinken, who's been a great

public servient and also a friend of the aspen institute. i know you are about to embark on a trip that's coming week. why don't you just open up by telling us what you're doing and what we should be knowing about. >> walter, thank you very much. it is great to be here with all of you. i have to say, following secretary powell, even briefly, makes me empathize with two people in particular. allen and rossi. they were the act that followed the beatles on the ed sullivan show. with that said, i actually thought i'd spend a few minutes -- then we can get into specifics, if that works with you, walter, on some things we'll be doing in text week, including going to ukraine and visiting with our folks here putting where some of where we are in a little bit of perspective. because there are constant narratives out there about u.s. leadership, or not. u.s. retreat from the world or

not. and i think it is useful to create a little context for the discussions that we're about to have. i would maintain that never has the united states and its government been more engaged in more places than at this particular time. and if you look at what we've done in recent months and in recent years mobilizing quite literally international coalitions and countries to deal with isil, to deal with ebola to deal with climate change to deal with ukraine and afghanistan. you see that leadership in action. you saw it recently this summer when we brought the leaders of 50 african countries to washington for the first african leaders summit here in washington connecting them with the private sector, putting in place a new foundation for moving forward on growth on collective security and building institutions. you saw it in central america. the vice president brought

together countries in the interamerican development banks where in central america if their leaders stand up and take responsibility for problems of government, corruption, security, we and like-minded countries in the region will support them. you see it in asia. i just got back from japan, south korea and china. you see it in an effort that's been ongoing for several years that's the so-called rebalance, where we are in a very material and concrete way building institutions strengthening our partnerships with existing allies building new partnerships with new ones opening up even further to trade through tpp and building a more cooperative relationship with china even as we deal directly with our differences. and you're seeing it in places like iran and cuba. think about this. the change that was made with cuba the possibility of an agreement with iran at least on the nuclear program opens the

prospects in the space of about nine months. two of the most difficult elements in the psychology of american foreign policy for the last decade will be in a new and different place. doesn't solve the problems. we'll still have -- if we do get a nuclear agreement, a few problems with the way iran acts in the region and beyond. but, quite significant. the reason i say all of this is again, there is this notion somehow that america is in retreat or is not leading. i think, again, nothing could be further from the truth. another way to test the proposition, what's a movie you're probably subjected to every year before christmas, "it's a wonderful life." we know what happened to bedford falls when george bailey was out of the picture. we know what would ha. in each instance i just talked about if the united states was out of the picture. imagine where we be without the

united states in the campaign against isil. where would we be when it comes to dealing with climate change. where weould we be on ebola ukraine. et cetera. the fact is we really are leading so the debate should center around how are we leading, through what means, to what ends. that's the proper subject for debate and one that i'm very happy to engage. >> you were going to say that you are a he going to europe next week mainly to deal with the ukraine issue. explain what that trip is about. >> well, the secretary is in europe now. he's working on iran but he's also working closely with our european partners on ukraine. it is a very challenging situation. let me put it in perspective because i think there, too, it is important that we have specifics. there are a couple of big principles at stake in ukraine. you can make the argument that what happens in ukraine doesn't go to our fundamental strategic interests. but i think when you look at the

principles at stake there really is a lot here that we need to be mindful of and it explains why we've been so focused on this and why we've been leading the effort to put pressure on russia to reverse what it has done to ukraine. first, the notion that you can change the status quo by force, and in particular a big country can do that to a small one is not a precedent that we want to allow to stand in the beginning of the 21st century. were that to happen, i think you'd see serious an very negative repercussions not just in europe, but in other parts of the world. second -- and this is something that doesn't get a lot of attention -- when i served in the clinton administration, one of the great achievements early on was making sure that the successor countries to the soviet union that inherited nuclear weapons, belarus, kazakhstan and ukraine actually gave up those nuclear weapons. in the case of ukraine, the deal was this. they said we'll give them up but we want our sovereignty and

territorial integrity guaranteed. three countries signed on to those guarantees. the united states the united kingdom, and russia. imagine what this says now if we allow russia to in effect ignore and tear up that agreement -- the so-called budapest memorandum that many of you are familiar with -- what does it say to a country like north korea that has nuclear weapons an we're trying to persuade to give them up. what does it say to iran who doesn't yet have nuclear weapons, to get them to foreswear them? there are big things at stake here. >> i was just rehn-reading that. that budapest memoranda commits and obligates us to certain things. >> we made a compliment to stand with two other countries ironically, for several propositions. critical among them were the

territorial integrity and sovereignty of ukraine. that's been grossly violated over the last year. so where are we? i think there are -- there is a good news piece of this and a bad news piece. the good news piece is because of the pressure we were able to exert with president obama leading throughout this process in working with the europeans, getting to exert the pressure with us, keeping the unity that was so necessary to making that pressure effective. we did create space for ukraine to have two successful elections and produce probably the most effective government that it's had since it's been independent. we also created space for ukraine to sign the association agreement with the european union which was part of the cause of the crisis in the first place. but, what we haven't seen unfortunately, is the separatist land grab fueled by russia, supplied by russia, organized in many cases by russia. that has not stopped.

there was a basis for stopping it in the minsk agreements. first ones concluded in september, and now an implementation plan that was agreed by the countries in question just a couple of weeks ago with germany and france's leadership. and there is a clear way couple of weeks ago with germany and france's leadership. there's a clear way out there. if russia makes good on the commitments it made in these minsk agreements there is what we call an off-ramp. if russia takes that off-ramp the pressure that's been exerted, the sanctions that have been exerted, those begin to be removed. you always have the crimea problem and that's significant and that's not going away any time soon and the pressure won't go away there. but for the east it could and it should. russia is playing a huge strategic cost for what president putin has engaged in in ukraine. we see the devastating impact on the economy, taking deeper and deeper root. we've seen capital flight of a rather extraordinary proportion. more than $150 billion over the last year. we've seen a virtual standstill

in foreign direct investment. we've seen the ruble at an all-time low, despite the fact that they've spent over $100 billion in reserves to try and bail it out. we've seen the country get ratings of junk bond status from the major rating agencies. we've seen growth go from about 2.5% to zero, they're basically in a recession. the drivers of the economy in the future have actually been singled out for the sanctions program, particularly the energy sector where the technology russia needs to actually take the next step in exploiting more difficult resources will be denied them. so this is not a good path. also, it's worth pointing out that to the extent the russians have gained crimea and may now have this foothold in the east they really have lost ukraine. the country is now more united and more focused and western-oriented than it's ever been in its history of independence. nato is more energized than it's been in recent years. there is now a greater seriousness of purpose about

energy security in europe than we've seen in recent years. in other words, strategically president putin has precipitated virtually everything he sought to prevent. my concern is that he's been left with playing the nationalist card because there's not much else left to play. the combination of the sanctions, obviously the fall in oil prices, mismanagement of the economy, all of those things don't give him a strong economic hand to play. so you play the nationalist carved and it work in the short-term. you see that in his numbers. the problem with the nationalist card is you have to keep playing it. as soon as you stop playing it then people start to focus on all the things that are going wrong. that's why we try and continue to try to propose an off-ramp that allows him to move away from the direction that this is going. right now, the critical thing is to see the obligations and commitments made in minsk, both in september and the implementation plan that was reached a week or so ago.

those commitments need to be implemented. there needs to be a cease-fire. the heavy weapons need to be pulled pack. ukraine has certain obligations too in terms of moving forward on decentralization legislation. critically, the international border has to be restored between russia and ukraine. absent that border it's basically russia has a free hand to throw -- >> if that doesn't happen do we arm the ukrainians? >> this is something that has been on the table and remains on the table as a possible course of action. let me say a couple of things. first, we provided over the last nine months or so about $150 million, $130 million worth of security assistance. it's not just the infamous meals ready to eat. by the way, meals ready to eat are kind of important. if your soldiers aren't eating they're probably not going to be able to do a good job. beyond that we've had countermortar radios that have been very important, night vision goggles, kevlar vests, et cetera.

we don't think that this conflict is going to be solved militarily. and the hard part about thinking about lethal assistance, even defensive, to the ukrainians, is that you do that and the russians are likely to match and it top it and double it and triple it. so where does that lead? on the other hand, there's obviously a compelling case to be made for helping the ukrainians defend themselves against aggression. that's what we've been doing and that's why the question of additional defensive assistance remains very much on the table. >> let me move to iran. we're going to do that, then i'm going to open it up because everybody here i'm sure has questions. the -- secretary kerry's been in geneva this weekend and he seems now to be getting closer and i think has even told people at the state department, perhaps in

case there is an agreement, how we're going to sell it, what we're going to do with congress. can you give me the outlines what was you think that agreement could be? >> so where we are, first of all, is we've done a lot of hard work. and the secretary's done extraordinary work in trying to get the elements of an agreement in place. we're not there yet. whether we'll get there as we sit here today, i can't tell you. we are making progress. serious discussions, hard discussions. and moving, but we're not yet there. but at the heart, any agreement has to do a couple of things. and this is what it should be judged on if we get there. the most critical thing is, as a practical matter, it has to cut off iran's pathways to fissile material for a nuclear weapon. so what does that mean? it means that they have potentially a pathway through their facilities that are uranium-based. tauns, which has most things on the surface.

that as a practical matter needs to be cut off. they have a plutonium program at the iraq reactor. that too needs to be cut off. and then the fourth pathway, that is a covert program, needs to be dealt with, principally through transparency, inspections, access, so that we have confidence that they won't be able to pursue that. now, what we'd be looking at, and the measure that we've set is, we want to make sure that on all of these pathways, we have confidence that were iran to break out of them, that is to decide to renege on its commitments or cheat, that it would take at least a year for iran to produce enough fissile material for one nuclear weapon. >> did israel initially agree to that framework? >> there is a -- look, i think from the israeli perspective, from everyone's perspective, if we could achieve zero enrichment

in iran, that would be great. so i think if you ask the israelis i suspect they'd continue to say that would be their objective. the fact is iran has mastered the fuel cycle. we can't sanction that away, we can't bond that away, we can't argue that away. most of our partners i think have accepted that -- that proposition. the question is not whether or not -- >> you say most of our partners, does that include israel? >> i'm talking about the ones who are negotiating with us, that is in this group in the p5+1. the question is whether you can design a program that is so constrained, so limited, so checked, so monitored, that you have confidence that they will not be able to produce fissile material for weapons should they choose to do so in less than a year. which gives you, should that take place, plenty of time to do something about it. keep in mind two other things. it's not just the is fissile material. you actually need a weapon. our experts believe while they

were pursuing a weaponization program until about 2003, that was put on -- that was halt the. you also need a way to deliver the weapon. that goes to the missile program. then even if you got all of that, when it comes to fissile material, the idea that most countries would actually break out for one weapon's worth of material is pretty unlikely. so we've been very, very conservative about this. and if we're able to achieve that, then i think we would be confident in moving forward. the other thing that's important is this. in any of these situations you always have to; as compared to what? so if there's no agreement, what happens? well, a lot depends on why there's no agreement. if we're seen as seeing the -- that's going to make it very difficult to sustain the sanctions coalition that we've spent so much time building up. congress put in place very strong sanctions. has done a very good job on that. but the sanctions are much less effective if other countries don't join in implementing them and enforcing them. and this president has spent enormous time building and strengthening that coalition.

if that starts to go away, the pressure's off and it moves in a bad direction. the other alternative is potential military action. and i think it's clear that, you know, one could certainly set back the program for some period of time. and that if it comes to that someday. but you're also probably looking at setting it back, not stopping it. because again, the iranians have the knowledge. they'll build it back up. and it will probably be driven underground. so that's not an ideal solution. of course with military action, there tend to be unintended consequences that are something -- >> how important is it in such a deal that the iranians come clean about what they were doing and the international agencies where they've not exactly come clean? >> the iaea has been, as many of you know, been engaged with the iranians to try to do just that, to get transparency on what has taken place. what they were trying to do in

the past. and that is important. and i think -- >> so is that part of a deal, you think? >> it's technically separate from the deal in the sense there's a separate dialogue going on with the iaea. but we would like to see satisfaction of that. i think -- >> i'm sorry, so you're linking those two now? >> it's important for the iaea and iran to come to conclusions about the so-called possible military dimensions of the program. the most important thing, though, when you think about this, going forward, that is, putting in place the regime that we need and that our partners need to give us the greatest possible assurances that iran is making good on its commitments, not deviating from them, not cheating on them. and that goes to what kind of inspection regime you have, what kind of transparency. and what has to result from any agreement is the strongest, most intrusive inspection and access program that any country has seen. because iran has forfeited the trust of the international community --