spent years and in some cases including mine, decades studying, teaching researching and writing immigration law and we are very familiar with what the statute allows and what it forbids. the president has not just one but multiple sources of legal authority for these actions, and i've submitted a detailed written statement that documents each of them. i also identify there every legal objection i can think of that the president's critics have offered and i've explained why, in my view, none of them ultimately withstand scrutiny. so with limited time i'll hit just a few key points and refer you, please, to the written statement. deferred action has been standard agency practice for many decades and it's been expressly recognized by congress in several provisions and in many court decisions. further more, every lawyer knows that statutes are not the only source of law. the most explicit legal authority for deferred action but not the only authority is in the formal agency regulations which have authorized it since the earliest days of the reagan administration.

these regulations, by the way were adopted through notice and comment procedures and they do have the force of law. none of these laws not one of them, says or even remotely implies that deferred action is per se illegal. the most vocal critics have misunderstood what deferred action is. they've confused deferred action itself with certain things that you can apply for if you get deferred action. but deferred action itself is just one form of prosecutorial discretion. it's a decision not to prioritize a person's removal, at least for the moment and the only thing affirmative about it is that the agency is giving the person a piece of paper letting them know that that is the case. every immigration scholar and practitioner knows that deferred action can be revoked at any time for any reason and the government can bring removal proceedings at any time contrary to what my new friend professor foley has said. there's nothing in any law that says this makes a person who is deportable not deportable or that it gives them some kind of

status. that's simply not true. it's also true that existing laws allow deferred action recipients to apply for certain other thing including work permits and, if they're granted, social security cards. but the executive actions don't touch any of those laws. so my feeling is if you object to them then by all means argue for challenging them. but there's nothing wrong with deferred action itself or this particular use of them. importantly also, daca and dap pa applications do not create -- >> can we a ask the witness to speak into the microphone, please.applications do not create -- >> can we a ask the witness to speak into the microphone, please. >> these applications do not create substantive rights and statuses. the secretary's memo says this explicitly. they are discretionary on paper and in actual practice. as to the latter, i hope there's a chance to expand on this that subject during the question period. finally, there have been some

melodramatic claim that if these executive actions are legal then there must not bely nimts at all to what future presidents can do. my statements identify at least four significant concrete realistic limits. i have time to wiz through them. in a nut schell, one, the president cannot simply refuse to spend the resources congress has appropriated for enforcement as president nixon famously discovered. but that's not a problem here because president obama has spent every penny congress has given him for immigration enforcement and he's used it to remove two million. nothing in these executive actions will prevent him from continuing to do the same. two, the governing statutes impose limits. they will generally indicate how broad the executive discretion is in a particular area. in this case congress has given the secretary of homeland security especially broad responsibility for "establishing national immigration enforcement policies and priorities."

now, nobody claims that power is limitless. it is, of course, subject to any specific statutory constraints, but to date, none of the critics that identified any specific statutory provisions that they can credibly say daca or dapa violate. three, the particular priorities can't be arbitrary or capricious. these particular executive actions set three priorities -- national security, public safety, and border security. i doubt many would say those are irrational. and fourth and finally, even if the priorities are rational, they can't conflict with any enforcement priorities that congress has specifically mandated. but here it's just the opposite. congress has expressly mandated exactly these very same three priorities. so there are serious limits and these actions fully respect them. thank you very much, again, for the opportunity to testify. >> thank you, professor. we'll start the round of questioning and i'll recognize myself and i'll start with a question for you professor

legams skrks legamski. you state in your testimony "that the administrations recent executive actions do not even approach an abdication of its statutory responsibilities." what, in your view would the administration have to do to abdicate its statutory responsibilities? would granting deferred action to all 11 million unlawful aliens be enough? >> my answer to that is yes. that would be enough and i did -- >> so would say, nine million would that exceed it? >> the answer to that would depend on an empirical question. the question is would the president still be spending substantially the resources congress has provided by? >> well, let's remember that the president when you talk about deportations, the president counts people for deportation that previous administrations did not count because they simply turned them back at the border rather than taking them through a process and deporting them. so about two-thirds of the people who are "deported" under the president's -- the two million figure you cited are --

were not counted in previous administrations because they weren't put through that process. but be that as it may, you're say nag if the president blows through all the money in a way that uses it all up whatever that number is that's the number of people he can give not only deferred action to but also employment authorization and social security benefits and earned income tax credit and legal presence in the united states? >> well, as i just said a moment ago, that's only one of what i see as four different limits. but the answer is yes. the president must spend the resources congress has provided by. >> and as long as he does that, if that meets the number, if he spends it all on 100,000 people, which is the number of actual deportations that occurred last year, 102,000 then he can give deferred action to the other 10.9 million people who are unlawfully president of the united states? that's your answer? >> no it is not.

for i think the third time, i think there were other limits as well and they include not only spending the money but making sure it's within the terms of the statute, making sure prior trees rational making sure priorities are compatible so it would depend on all of those things. >> well let me just ask our other panelists. attorney general, would you like to respond to that assertion that the president has this massive discretion? >> you know, i think zooming out, congress has been debating this for many, many years and in this particular case this path was not -- specifically not voted on by congress. so by president obama's own words many times over again before he did this this is just not a power that our constitutional system contemplated him having. if he does, as mr. chairman, i

believe, was heading this direction, if five million is okay then why isn't six and why isn't seven and then, you know, the f two years is okay why isn't three? so, you know, it seems pretty clear that this -- by his own words this has stepped over and once you add the benefits that are included there's just no justification this fits under prosecutorial discretion. >> let me follow up on that. you and 25 other states attorneys general including some governors, i think, in some states have brought an action in the district court in texas and do you agree with what judge hannan said in his opinion in that case, the department of homeland security cannot enact a program whereby it not only ignores the dictates of congress but actively acts to thwart them? the department of homeland security secretary is not just rewriting the laws, he is creating them from scratch?

>> we believe, as the three claims that have been made, that the constitution has been violated under the take care clause. the administrative procedures act has been, as judge hannan thwarted, he didn't ultimately decide that for the sake of this preliminary injunction he reserved that as well as the constitutional issues for the future but the states certainly believe that in all three cases the president has failed. >> let me afford that opportunity for professor blackman and professor foley to respond to that as well. >> so i think that professor legamski opined dapa didn't do far enough. a november 25th blog post, the professor wrote how come dapa didn't apply to the parents of the dreamers? the parents of the daca beneficiaries. this raises an very important point. many professors signed that letter and think the president didn't go far enough. so the doj's perceptions but was more important than that. but i will stress for the reason why they didn't go far enough because there has to be a

relationship to a group that congress has preferred. daca was people without any legal status. dapa is the parents of u.s. citizens. one important point is parents of u.s. citizens wait 21 years for a petition for a visa followed by a ten-year bar. more important, parents of lawfully born residents can never get a visa through their children so this is a case where the policies favoring people who have not been classed as congress as preferred. >> professor foley? >> i would just say, i mean it seems patent to me that both daca and dapa p.a.are categorical exceptions from law. and with respect to professor legamski, look to president obama's own words when he announced in the november of 2014. he said in a televised speech before the nation "all i'm saying is we are not going to deport you." i think that speaks volumes. the other thing i would say with regard to dadaca, look at the

numbers, we have two years of experience and the latest numbers as the end of 2014 show 97% of daca applications have been approved by the administration and in a letter from director leon rodriguez to senator grassley not too long ago he admitted that the reasons why the 3% have been rejected is because they're not filling out the paperwork properly or attaching the right check for the processing fee. that to me sounds like if you meet the criteria that's been a unilaterally established by this president, you will get an exemption from deportation and that's not what the ina declares. >> thank you, chair recognizes the gentleman from michigan mr. conyers. >> thank you mr. chairman, professor legamski could you respond to the question that has been posed by the chairman? >> >> i'll get it right this time. first of all, the figure is 95%

not 97%. professor foley's numbers are quite old and the current u.s. c.i. s. web site has laid this out in detail for several months now. we can speak later if you wish about whether 95% is too high but it's 95%. second, i think with respect you've confuse dead niles with rejections. when you were speaking about people losing because they hadn't signed the form or submitted the fee. those are the rejections. there are more than 40,000 of those. but in addition, there are more than 38000 denials on the merits and i think it would come as quite a surprise to those folks to learn that decisions are being rubber stamped. >> thank you very much. let me ask you this. in your opinion dorr the executive actions taken by the administration both daca and dapa alleviate the need for congress to pass broad immigration reform measures? >> thank you congressman. i would say the answer is no.

as the president himself has made clear on many occasions, he can't do what congress can do. only congress can create an immigration status and a path to a green card and to eventually citizenship. all he's done with deferred action is to say we'll give you a temporary reprieve from removal. we will make you eligible to apply for a work permit and if it's granted you can apply for a social security card but that doesn't approach a green card which would give you the right to remain permanently the right to naturalize, the right to bring many many family members and so on. deferred action doesn't do any of those things. >> thank you. now let me ask you about the texas litigation. judge hannon enjoined a deferred action program because he believed the applications were not being adjudicated on a case-by-case basis he concluded

this was not happening in the daca context. do you they is a reasonable way to approach the decision in that case. >> thank you. i'm glad to have a chance to answer that question because it really lies at the basis o the apa denial. judge hannon had no support in terms of evidence in the record that that was true. the starting point is the secretary's memo. it sex police it isly says repeatedly you must engage in individualized case by case determine nation and it also specifically said if the threshold criteria are metz use still need to exercise discretion. further more there's a lot of more discretion being exercised in determining whether threshold criteria have been met. to figure out whether somebody is a threat to public safety, it's not just a question of fact, it's an opinion as to how

much of a threat a person has to be before we deny it and so forth. so what the critics are reduced to having to argue in effect is that this uscis work force is somehow going to systematically disobey the secretary's clear, explicit instructions to exercise discretion. there is no one shred of evidence in the record to support such an accusation. >> now are the president's critics correct when they argue that the president himself doesn't believe daca and dapa are legal? has he contradicted himself somewhere along the line? >> i don't want my answer to sound disrespectful, but that has been one of the most irritating objections i've been hearing along the way. i know it makes for good political theater to keep saying the president has contradicted himself but when you look at the statements the president has made, which just one exception, almost all have been grand general statements about how i have to obey the law, i can't

suspend all deportations which, of course, he has not done. and so forth. he recognizes there are limits on his discretion and obviously he believes daca and dapa do not exceed those limits. as do the vast majority of experts in the field. the one exception i have to acknowledge is the unfortunate statement made in a spontaneous reaction to a heckler at one gathering when he said "i took an action to change the law." i'm sure if the president could go back and edit his comments as so many of us would love to do when we speak orally he would realize he should have said "i took an action to change the policy" because that's a more accurate description. but to read global legal significance into that one offhand comment does seem highly misleading. >> thank you for the balance that you brought to this discussion and i yield back my time. >> i thank the gentleman from michigan. the chair will recognize the gentleman from virginia mr. forbes. >> mr. chairman, thank you. and mr. legamski let's go back to your political theater remark

because there have been two lines on that theater that our friends on the other side of the aisle have played for audiences. one of them was found in your testimony, your written testimony. you state in here they've removed two million aliens. but isn't it really a little deceptive because aren't about half of those removals claimed by ice actually originate because they're caught along the border? in fact, one of the articles pointed out said this "the statistics arezpu deceptive because obama explained enhanced border security has led to border patrol agents arresting more people as they cross into the country illegally. those people are quickly sent back to their countries but are counted as deported illegal immigrants. is that a fair statement? >> it's factually correct. >> then let me follow up because

i only have five minutes. we had sitting right where you're sitting now the president of both the ice agents and of the border agents who testified unequivocally that they're the ones interviewing these people and that's it the president's policies that were causing more and more of these people coming across the border. isn't it really true if you're talking about political theater for the president to say he's sending more people back, kind of like a fire chief justifying his right to commit arson because it helped him put out more fires? it doesn't make sense to me. and when you look at the other line they've been using on their political theater, it's this one. well somehow or the other if congress doesn't act and i determine as president of the united states that the law is broke and it just doesn't work, then all of a sudden it shifts the constitutional power over to me. so attorney general, i would ask you, if you look and, you know, the president -- i mean congress

as i understand it has the authority to establish a uniform rule of naturalization. is there anything in the constitution that says if the congress doesn't want to act because they like where the policy is or because they can't act that somehow that shifts the constitutional right over to the president and he can take any other action he wouldn't otherwise have taken constitutionally? >> thank you, mr. congressman. you know, this is the crux of the argument and it -- of the lawsuit and it's within of my biggest concerns that it's been so for many years going back to probably when i was a law student at georgetown. our constitution is eroding and the executive branch continues to take more and more power. i can't think of a more clear example of something that the constitution clearly says the congress is supposed to perform and as i said earlier, congress

is debating this, the president did not get the policy he wanted and now he's decided to do it. i'd like to read a quote in answering to professor legomski i don't mean to gang up on you here. as to your comment that the president -- lizhis multiple statements didn't say he couldn't do this a heckler told him "you have the power to stop deportations." and obama replied "actually i don't. that's why we're here. what you need to know when i'm speaking as president of the united states and i come to this community is that if in fact i could solve all these problems without passing laws in congress then i would do so. but we're a nation of laws, that's part of our tradition. and so it's easy way out to try to yell and pretend like i can do something by violating our laws. and what i'm proposing is a harder path, which is to use our democratic process to achieve the same goal that you want to

achieve." this president knows that he can't do this. he knows that our system did not allow him to take these extra steps. there is no question as judge hannon said in his opinion. there is a wide berth for prosecutorial discretion. i don't think you're going to get a lot of argument about that. but this goes so much further than any prosecutorial discretion that's ever been exerted. if this was allowed then congress's role in this entire field is abdicated. why would continue take year after year to debate these issues if a president is able to take a scope we've never seen before and, in addition, add benefit on top of simply deciding to not deport. >> we saw that kind of syntax change when we heard "you can keep your insurance policy if you want to" as well. but it makes no sense that we have these arguments. my time is out mr. chairman i yield back. >> i thank the gentleman from

virginia. the chair will recognize the gentleman from new york, mr. nadler. >> thank you, i must begin by saying i'm surprised to hear the attorney general of a great state confusing political statements with legal statements. all these quotes from the president are interesting in a political debate and a political discussion. they're not interesting in terms of what his powers actually are. his opinions frankly, in a political context at all. what's interesting what's relevant as the attorney general should know, as everyone here should know, what are the laws are, the precedents are and court decisions are. not the president or anybody else's political statement in any context. let me say also that -- let me ask professor legomsky. we've heard that the president's exercise of discretion since it's categorical is somehow different and that he's establishing categories of people to whom he's giving

rights that congress hasn't chosen to give. essentially that's the gravity of what we're being told i think. i think rather, and please comment on this, that that's untrue. because the president is exercising degs discretion and granting deferred action to people. he can choose, the arizona case -- the supreme court has said it congress specifically has said it. we can choose to do that by group. by category. if the president came out with a list and said if following two million people by name are granted deferred action we would think that's sort of ridiculous. although i don't think anybody could do that. by category i don't think he changes that and, please comment on the fact that he's not invading congress's prerogative because he's -- this deferred action can be revoked at any time number one, and confers no permanent benefits, even though

it's been stated repeatedly that these people again benefits. they may get a social security card but my understanding is they don't get benefits. can you comment on these two points. >> sure i think everything you just said is absolutely correct. two things on the discretion issue. first of all, i do agree that there's really no law out there that says the president couldn't grant deferred action on the basis of a class-based discretionary judgment if he wanted to do so. we don't have to reach that issue here, however because the president didn't even do that. he did provide specific -- the secretary did for individualized discretion. i want to add that this is the way agencies normally behave and it's very sensible. you want the agency to provide some generalized guidance to its officers as to how they're -to-exercise discretionary power because you want political accountability to rest with the leaders. secondly because you want this information to be transparent because it's important. and third, the officers on the ground need to know what to do and, fourth, we want some reasonable degree of consistency

to the extend possible you don't want relief to depend on which officer you encounter or which prosecutor's desk your file happens to land on. and in this particular case, the evidence on the record shows that, in fact, these case-by-case evaluations are being made. >> thank you very much. before my next question i would like to simply comment on some of what has been said in the dialogue with mr. forbes and some others. the decision to formally remove border crossers rather than to return them was a strategic choice first made by president bush in order to disincentivize future illegal entries. a formal removal creates future bars to admission. would you comment on that? >> sure, i think border apprehensions and priorities make sense both for the reason you just gave, congressman, and for a another practical reason, it's smart strategy. it's smarter to stop a person at the border than to divert resources from the border, let people in and try to chase them

down years later. >> thank you. many of the critics of the deferred action programs complain they go beyond enforcement of immigration laws and instead provide a lawful status to people in an unlawful status. is that correct? >> no, their status remains unlawful. they have something called unlawful presence which has a specific meaning for one particular provision but their status is unlawful. >> and finally, critics of the president's actions suggest that they are unprecedented and act as those these issues are entirely novel to the federal courts. hasn't the supreme court, in fact, spoken about the extent to which the administration has authority to exercise prosecutorial discretion in the immigration area specifically and whether granting deferred action is an appropriate form of that discretion? >> yes they've done that in a couple cases, as have many of the lower courts. the supreme court decision -- one supreme court decision specifically recognized deferred action by name. the facts were different but the takeaway was the same. the president has this power. >> so finally what about what the president has done aside

from the fact of his name, perhaps his party and the politics of immigration is different than what previous presidents have done? >> i don't believe it is different. all fact situations are different in some sense but they're not meaningfully different. slightly different form was used in previous cases but the fraction of the undocumented population that the actions were predicted to affect is roughly the same and in all other respects the main -- i'd say the one common denominator, in all of these cases presidents have used their powers to relieve non-citizens from -- to provide temporary reprieve from removal and temporary permission to work, both of them revokable to large specifically defined categories of undocumented immigrants. that's not unprecedented at all. >> thank you very much, my time is expired. >> i thank you the gentleman from new york. the chair would recognize the gentleman from arizona mr. franks. >> well, thank you, mr. chairman. mr. chairman, it's often said that when human rights and human

laws are in human hands that men lose their freedom. and professor foley, i sometimes am entertained by reading from the federalist papers to law professors like yourself i am not an attorney so it gives me a little thrill you understand? but in madison's statement, federalist number 47 he stated that the accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed or elected may justly be pronounced the very definition of tyranny. the framers of the constitution understood that the accumulation of powers and tyranny were inseparable. and they rejected giving the newly created chief executive the legal authority to suspend or dispense with the enforcement of the laws. and that of course, in their mind was the province of

congress. so my question to you is do you believe that the president's recent actions comport with the framers' conclusions and is president obama refusing to adhere to the "take care" clause in an attempt to evade the will of congress and was he acting constitutionally when he did that? >> congressman franks, you ask a very salient question. absolutely the president here is violating the take care clause because his duty under the constitution, again, is to see to it that the laws are faithfully executed. so even if the laws are completely broken and everybody on both sides of the aisle agree that the law is broken, the president does not have the constitutional power to fix it. if it's going to be fixed, it has to be fixed by congress and congress alone. i think the framers would be rolling over in their graves if they knew what this president was doing. and let me just address prosecutorial discretion for a moment if i may. i mean one of the hypotheticals that gets bandied abowdut by those

who support the president's actions say well, a sheriff can decide he's only going to pull over speeders who go five miles per hour or more over the speed limit and let everybody else go and that's what this president is doing, there's no difference. there's a world of difference between those two things. what that president is doing in that hypothetical is classic prosecutorial discretion. but that's not what president obama is doing by these actions. to be analogous to what president obama is doing here, that sheriff would have to first of all publicly pronounce to the world that he's not going to pull over the speeders, despite fact that the law says they're speeders. he would have to say "and if i do pull anybody over, i'm only going to give them a fine of a dollar even though the statute says it's $100 or more fine. and then also when i decide to pull them over i'm going to give them a gift card from best buy, i'm going to confer benefits

upon them." ma that's what the president is doing and that's not prosecutorial discretion. >> well, i'm not sure i should ask any more questions at that point but professor blackman do you agree with comments, basically? >> oh absolutely. the president's ambitious congress is ambitious. the president wants something, congress wants something. the only way to prevent tyranny to prevent being infringed is both have butted their heads. all too you have been people say, washington is gridlocked. now, this congress hasn't been able to reform, but that's not a license to expand your power as justice scalia pointed gridlock is a fee you are not above our constitutional order. justice breyer said these are political problems not

constitutional problems soty t point i'd like that stress the mere fact that washington is broken doesn't give the president power to ascend. it says the president has powers of discretion but it says the case my turn on the equities of an individual case. it says in the opinion, justice kennedy, the equities in the individual case. so when you read both paragraphs arngsd this is won on a case by case basis. thank you. >> professor, foley, let me expand on one other thing you mentioned. the federal district court in texas made this distinction between the federal government not enforcing immigration laws on removal of an individual and taking the next step of actually providing lucrative benefits to unlawful aliens. that seems to be an incredibly stark precedent here. could you expand on that a little bit? >> absolutely. the conferral of benefits is the classic example of why you don't want to start going down this road constitutionally with the president. because think about what he's doing. he's first of all publicly

announcing to everyone that even though the law says you shall be deportable, you're no longer deportable. now i'm going to give you this remedy called deferred action that congress has blessed in certain other instances explicitly but not blessed for this particular population then once he makes those moves then he confers all these benefits upon this population. that's classic bootstrapping. and if the president can make the first two moves, then why not just bootstrap and add the other move which is the conferral of benefits? that's what makes this so dangerous because if congress's core constitutional powers include anything, it's not just naturalization but the power of the purse and these benefits have financial consequences not only to the federal government but of course to the states which is why they have standing to sue him. >> time of the gentleman has expired. the choir rises the gentleman woman from california ms. lofgren. >> thank you, mr. chairman. before asking any questions i'd ask unanimous consent to enter into the record five statements

from the following organizations explaining the legal authority for the president's actions from the constitutional accountability center, the asian american advancing justice, american immigration council, national council of la raza and the national council of asian-pacific americans. >> without objection they will be made a part of the record. >> thank you. professor legomsky i want to say publicly that i've been in congress for 20 years, i've read a lot of testimony in many hearings over the years. your testimony is the singular best most concise logical testimony i have ever read in my 20 years in congress and i thank you very much for your service in that way. i would like that ask you a few questions. professor foley in her testimony indicates that the undocumented immigrants who are covered by daca and dapa are "no longer

deportable." and that according to that, illegal immigrants who fallout side these three priorities are not to be deported at all. do you agree with that and if not why not? >> that statement is not true and i'm not sure where professor gets the authority -- not as cited. they are of course still deportable. the secretary has made clear that deferred action can be revoked at any time. there's nothing to prevent the administration from initiating removal proceedings at any time. so i'm not sure what the basis would be for that assumption. i'm also neglect informal saying thank you so much for those generous kwhords are really too joan rouse. >> in the "reno" case, justice scalia had a key holding, it was that congress had made immune from judicial review any action or decision to "commence proceedings, adjudicate cases or execute removal orders." and went on to say that at each

stage the executive has discretion to abandon the endeavor at the time the hour was enacted the i.n.s. had been engaged in a regular practice which has become known as deferred action of exercising that discretion for humanitarian reasons or simply for its own convenience. professor foley in her written testimony i think tries to diminish the significance of that case and to distinguish that says the court merely acknowledged the court did not want federal courts to get tide up in adjudicating discrimination lawsuits. do you agree with that? and if not why not? >> i think professor foley makes a fair point in noting that that case did involve a denial of relief rather than a grant of relief. but the broad take away from the case is freft the+ñz court's language where it went out of its way to say this discretion

extends to the decision whether to adjudicate cases how to adjudicate cases and also whether to execute removal orders. so the facts might be slightly different but i see no basis on the opinion for distinguishing it based solely on the facts. >> in -- there's been a lot of discussion about how dapa and daca grants additional benefits. but it is my understanding that it simply defers action and persuant to section 274 a, the immigration nationality act which provides that employment may be authorized either by the act or by the attorney general and 8 cfr 274 a.12 provides an alien who's been granted deferred action an act of administrative convenience to the government may apply for authorization if there's an economic necessity which must be

proven. is it your position that it's only the statutory basis that's been exercised following a grant of deferred action or does the executive action give some kind of benefit directly? >> yes i think it's a little bit of both. i would distinguish two kinds of so-called benefits. first of all, there's the benefit of simply receiving a piece of paper in which the government tells you we are deferring action in your case. people can disagree on the policy of that. there are pros and cons of telling the person. but i've never seen anyone cite a law that says it's illegal to tell a person "we're not going to prix perot seed against you." the other benefits and the ones you've been describing just now are specifically authorized by statute and even more specifically authorizationed by the regulations. they've been enforced since the early '80s, they have the force of law and they specifically say if you receive deferred action you are eligible to apply for a work permit. >> now, we appropriate money every year that allows for the removal of roughly 7% of those

who are in the country in an undocumented status. it appears to me -- i mean, the affidavits submitted to the judge in texas by the head of ice and the head of the border patrol indicate that having a piece of paper would be to note the priority would be have been helpful to them because the cost for removal is not at the stop it's the detention, there's a lot of cost that goes into that and knowing that this person was not the priority at the beginning would be help to feel the agency before costs are incurred. do you think that without having these priorities we're going to end up having to say that the nanny is -- who is caught on the street is as high a priority as a drug dealer or gang member? >> i think that would be the logical result. it would be up to each individual police officer to decide what do i think my agency's priorities ought to be?

and may i just add in addition to the benefit you've just described, namely helping ice sift out the low priorities so that they can focus on the high priorities in addition uscis is collecting a lot of useful data that can be shared with other enforcement agencies and all of that is being paid for by the requesters themselves, not by the taxpayer. >> my time has expired mr. chairman, i yield back. >> i thank the gentlelady from california. the chair would recognize the gentleman from texas, judge gohmert. >> thank you, mr. chairman, and thank you to the witnesses that are here today. i want to direct first question to our two law professors. did both of you read the 123-page opinion by judge hannon? >> yes. >> yes. >> okay i've got it hear myself. for full disclosure andy hannon was a classmate in law school,

he was one of the best and brightest, that's why he went with one of the best firms in the country in houston and why president bush nominated him. he's a brilliant guy. have you also read the response that the -- that has been filed by doj, both of you? >> yes. >> okay. well i was noticing in page 10 of the response where they're saying the government will suffer irreparable harm absent a stay and in the very next sentence they say that the injunction, judge hannon granted, blocks dhs from exercising its authority conferred by congress and it's congress that's trying to stop them from exercising the authority, not by a written executive order as judge hannon makes clear but as a good

monarch would do the president spoke law into existence and then the secretary of homeland security ran and put it into a memo memo so i'm wondering if a law student in response given a question here's your exam, respond to the 123-page opinion of judge hannon and they came back and said irreparable harm because the injunction will prevent us from doing the job that congress conferred on us what would be your response as law professors to the that answer? >> i guess my first response would be again bootstrapping argument. "f." they're saying they're going to suffer irreparable harm because they're prevented from thinking

they don't have the authority to do what they're trying to do. it's got to be no. the answer has to be know because despite professor legomsky's attempt to identify four criteria that he think prose sides are a meaningful limiting principle, with respect, they don't. if this president can do this, future presidents can unilaterally spend for entire categories of people whom they prefer for some political reason operation of various laws. environmental laws labor laws the laws and on and on and on and that clearly upsets the constitutional balance. that's not faithful execution of the law. >> and if i may add, the ranking member is correct, this was not a constitutional decision. the decision was on the administrative procedures act but i think judge hannen showed his hand a bit, maybe a texas bluff. the constitution says the president will take care of the

laws he executed. this speaks of a complete abdication of the laws. judge hanen's opinion explains clearly why. one aspect of the opinion that hasn't been appreciated he says we need notice in common, we need rule making. somehow this working? i think this hearing testifies why. we don't know how this policy works. in my research i find a checklist used by dhs which has no other box it's the only way to grant dapa is by checking off a box. professor legomsky found narrative form. he admitted there's different types of forms being used. do we know which type? no. this would be a perfect opportunity to show the american people how this is working then we can go to court. so i think there's one saltory aspect of judge hanen's opinion is we can learn what this is doing. we're learning this now after the memo has been released. had texas not filed the lawsuit, this policy would be in effect and there would be no opportunity to challenge it. >> my time is about to expire but this is an incredible response in how poorly done it is in my mind.

bottom of page 10 it says "for reasons long recognized as valid, the responsibility for regulating theeing the relationship between the united states and our alien visitors has been committed to the political branches of the federal government. as such, preliminary injunction necessarily causes irreparable harm." they site that this belongs to congress and then come back and says so if you leave to congress it causes the executive branch irreparable harm. these -- for heaven's 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, it bootstraps. they were not give than responsibility, they's not their job. i see my time has expired? >> i think the gentleman from texas. the chair would recognize the

gentlelady from texas miss jackson-lee. >> let me thank you very much mr. chairman, 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 very 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 that 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, section ii that deals with "shall take cares that the law 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 that i'm trying to show my smiling face, but immediately when the order came out from texas, texans and families that would have been severely impacted came together and said they stand with the president for testimony 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 of crooks and criminal, felons versus families. these are the family members. this is an example of a parent that would be, if you will separated from their child. and i think -- i want to make sure i have that professor -- it is legomsky? >> pretty close, yes. >> legomsky. i want to make sure i pose questions to you in a short period of time because i think you elevated us to a level worthy of commentary. this is a hearing that contributes to political security and not national security. in this hearing, the backdrop, we are not funding dhs. that is a horrific tragedy in

the midst of the crisis of isil and we're doing it on untoward and police directed 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 evidence sort of looking for my documents right now. but there are documentation that grants that you would warrant and need would not be generated and ski you to review the impact of not funding dhs that you would ask me well, 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 lumbowsky, these are the procedures that the discretionary efforts 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 president, the discretionary tort. but the arguments made by my good friends are incorrect. it is limited. it is not offering limited citizenship. it is not offering the affordable care act. could you just tell us how we are in the context of not having a runaway executive laying the

precedent for a runaway executive in the future. >> the gentle lady is out of time but you may answer the question. >> i thank the gentleman for his indulgence. >> as outlined earlier, i think there are several tangible limits. i know professor foley have said they don't really work but i'm not sure why. there are real limits on what a future president can do. 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 the hopes of millions of people. and i'm thankful to you for bringing that out. >> chair thanks the gentle lady from texas. will now recognize the gentleman from pennsylvania, the former united states attorney mr. moreno. >> i have a request that since i'm running among three hearings today, 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. professor, we passed legislation last month that funds the department of homeland security at the levels they agreed to. levels they wanted. so in your opinion as a legal scholar, do you think we have held anything hostage or have we just done what constitutionally we're supposed to do? >> congressman jordan i think you're doing exactly what the constitution con templates you should do, what the framers anticipated you would do. they anticipated that you would vigorously defend your constitutional prerogative. >> 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 think is unconstitutional. do you think the president's actions last november were unconstitutional professor foley? >> i i absolutely do. it's one thing to hold an appropriations measure hostage. it's another thing to hold the constitution hostage. >> you think it is, i do, the two gentlemen to your right and a whole bunch of other folks on the right and left of the political spectrum think what the president did was unconstitutional right? >> that's correct. >> 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 on 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? >> you may want to ask your colleagues on the other side of the aisle that question. i would say again in my opinion it seems like it is in fact the other side of the political aisle that is holding the constitution hostage. >> but it's even worse than that, pro first foalfessor foley. they not only want to insist they be able to fund something that's unconstitutional and the federal judge has said is unlawful, they're not even willing to debate the issue on the floor of the united states senate. 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 testify and he refused to. he can go on every show over the weekend and talk about this but he can't testify and answer fundamental questions?

if anyone's 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. >> that's a shape. that's not the way the constitution of the 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. >> and the final thing i would say, mr. chairman, 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['ñ 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 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'd yield back. >> i thank the gentleman from ohio. chair would now recognize -- >> mr. chairman, may i introduce two items into the record, please? >> okay. >> thank you, mr. chairman. i offered an eligibility chart. i'd 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 ask unanimous consent to place that into the record. >> without objection. >> i yield back. >> chair would recognize the gentleman from tennessee, mr. cohen. >> thank you, mr. chair. professor legomsky, you said

that -- how many different professors or attorneys specializing in immigration law felt that this was appropriate and constitutional? >> 135 immigration scholars and professors, not even counting practice ers signed onto 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 a third person whose views are somewhat ambiguous on it. but there are very very few in number. >> so 135 to 3. that's even better than kentucky usually gets in basketball against bad opponents. >> i don't like to represent that every immigration professor has opined on the issue, but of those who have those would be roughly the numbers. are. >> and you are a professor of immigration law, is that correct? for 30 years? >> yes, sir. >> and have written a textbook that is in what, 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've done a lot of good work trying to say that obama care is unconstitutional, a lot of work on health care law and some work saying that colorado shouldn't be able to legalize even though justice brandeis talked about the laboratories of democracy they shouldn't be able to do that. but you're the expert. none of these other folks have written textbooks on immigration law. their main work has been on property law constitutional 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've both done wonderful scholarship and both top people in their field. 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 faithfully execute the laws you've got to specify what laws

you think the president has violated. one of the things that's struck me about this discussion there's been almost no reference to any specific provisions of the law that they actually say have been violated. >> you're familiar with u.s. 6205? there's a clause there that says the secretary shall acting through the undersecretary for border and transportation security shall be responsible for the following. and he gives eight items. 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. the secretary must exercise that power consistently with any specific statutory constraints. but again no such constraints have been credibly identified. >> do you have any -- you were an attorney also i think for immigration. do you have any ballpark figure

on how many followdollars it would cost the taxpayers to hire enough attorneys and to go through the proceedings to try to stop those people or send those people out of the country? >> i'm sorry sir. i don't have a number on that. there have been studies, though. there's no doubt the number was cost prohibitive. it would be impossible to do that. >> millions of dollars. >> many many millions. i'm sorry. i want to take that back. i shouldn't say many millions because i don't know the number but it's astronomical. >> astronomical is close to many millions. in the same ballpark. president's 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 miss lee and might have been representative nava other than

the difference in parties, et cetera, how would you distinguish the reprisals this president has got snn why is this president different than all other presidents? >> i think they're very similar in that in each case the president was doing something congress -- sorry was acting in an area in which congress had 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 specific statutory power because there was something in the law that authorized voluntary departure. i don't know that congress intended a voluntary departure be exercised on a class-wide basis but there is that. first deferred action itself is recognized in many places in the statute. it has been recognized by many courts. secondly the most explicit legal authority which does have a force of law is the regulation that's been in force for more than 30 years. >> i just want to make clear

that professor foley i wasn't meaning anything about the u.t.-kentucky game. they played a great first half and i was pulling for u.t. also but kentucky was too much. >> 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 blackman thank you also for being here. south texas, i couldn't get into south texas. but i'm glad you're here. >> you can visit my classroom anytime, sir. >> tell professor trees hello. he and i are contemporaries. quite a tribute to him the school has him. let's assume these hypotheticals, being from law schools, law professors love hypotheticals. so 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 plains. next president decides, i am going to postpone the implementation of epa regulations indefinitely throughout the fruited plains. sends out memo. i've decided that in all fairness some people 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 plains. 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 living in that ear remarks president obama delayed the individual mandate once for an entire class of people based on the hardship. what was the hardship? oklahoma care it was too expensive. president obama delayed the employer mandate twice what was the hardship? obamacare it was too difficult. with respect we're living in that era. i think it's a very very scary time. take your example and imagine a future president said we don't have enough agents to enforce the internal revenue code against the capital gains tax so we won't enforce it. we can tell people the corporate income tax is way too high. for any corporation that is has so many employees we're not going to enforce it. it's just too much work. 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 gives discretion. i'm okay with that. but what the facts demonstrate here is one of bad faith. the reason why the president's statement about lacking power relevant is not for political theater. it's to say he said that, he what asked can you defer the deportation of a mother of a u.s. citizen? he said no. the justice department said no this can't happen. suddenly in congress they find this authority. i think it's a case for bad faith. we are in uncharted waters. if you open a constitutional law textbook where i do have expertise there's not much written on the take care claus. that's why constitutional lawyers want to understand why the separation of powers trumps immigration law when it goes too far. these provisions no doubt grant discretion. but granted the amount of discretion that the justice department weighs now it's unconstitutional to the nondelegation doctrine. the ols memo does not put this much weight but the doj did. taf of after they lost they shifted to these two provisions

and put more weight on t. there is discretion but it's in the caveats of the take care clause. which we now have to litigate. it will be at the fifth circuit any minute. >> i only asked you the time. i didn't ask you to tell me how to make a watch. i mean that kindly. only because we have so little time understand. my question was those hypotheticals they gave you are those real possibilities if everything stands the way it is? if the next future executive in good faith faithfully executing the law of the irs code says it's not fair that everybody has to pay the 39% or whatever. or the epa, that'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's 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 that's 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

in the states has the same authority. >> well that, would violate the supremacy clause in both cases. the constitution for the supreme law of the land the president is bound by it and states are bound by it. neither can ignore it. >> mr. gentleman yield? >> i'm out of time. i yield back to the chair. >> thank you, judge poe. the chair would now recognize the gentlelady from california miss choou. >> i'd like to enter into the record the center for american progress report that says it would cost $50 billion to deport the estimated 5 million people who would benefit under daca and dapa. >> without objection. >> professor legomsky critics argue that even though dapa and daca have individualized criteria that officers have to use on a case-by-case basis that the high rate of reproofal shows there's blanket approval of these cases. you served as the chief counsel of the uscis in the department of hem homeland security for

several years including in the time dac arca started. i'm curious what you learned about these cases. a 95% approval for daca 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's actually applying for daca and dapa. if you're an undocumented immigrant, and if 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 initiative 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. so for both reasons, this tends to be a very self-selecting population overwhelmingly people with rock solid cases. therefore the high approval rate is no way indicates they're being rubber-stamped. may i add quickly also the notion they're being rubber-stamped would come as quite a surprise to the 38,000 people who have received denial notices. >> thank you for that. professor, congressman dates through the secretary of homeland security the national immigration enforcement policies and priorities. in doing so the secretary's directed the agency to prioritize certain categories of people over other categories. in the texas versus u.s. case the judge hannon seems to accept that prosecutorial discretion is appropriate in this context. however he seems to oppose the idea of granting deferred action and notifying the individuals they are not an enforcement

priority. isn't deferred action in and of itself a form of ex erkiezing prosecutorial discretion? how would you counter judge hannon's reasoning? >> well, i agree with you. i think you're absolutely right. deferred action is simply an exercise of prosecutorial discretion. the only thing that distinguishes it from some exercises is that government is giving the person a piece of paper saying this what is we've decided to do. i think with respect that judge hannon has confused the question of whether deferred action is legal with the question of whether these other benefits are legal once deferred action has been granted. if he objects to those other benefits for example the ones that are codified in the statute or regulations, then properly what he should be doing is advocating for a change in those laws. but president did not touch any of those. it's just deferred action. >> professor, in judge hannon's opinion he argued that dhs acted unlawfully because it did not

allow the public to comment about the new dapa program in accordance with the administrative procedures act. can you walk us through whether dhs was required to follow the administrative procedures act before implementing the dapa 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's done here. what this really turned on in this case was whether you believe dhs when they say or exercising real discretion. judge hannon concludes that they were not, but only evidence he cited was an unsupported statement by one uscis agent, kenneth polinkis, whose support was simply there being decided by service centers which by the

way is where the vast majority of uscis adjudications are being decided therefore they must be getting rubber-stamped. that doesn't follow. the adjudicators take great care to go over the documentation very carefully. there are fbi backgrounds checks and so on. and if there's any occasion in which they think there would be some use in conducting a personal interview then they can and will refer the person to an interview at a field office. those are very careful adjudications. i don't know where he gets the idea they're being rubber-stamped. >> thank you. i yield back. >> thank the gentlelady from california. the chair will recognize the gentleman from pennsylvania, the former u.s. marine -- >> good afternoon. i'm sorry they wasn't here a great deal. but as i said i have several hearings going on at the same time. professor legomsky? am i pronouncing your name correctly? 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 a class. i couldn't simply say if i wanted to that those individuals that are driving under the influence, and even though they're above the .08, those that are below .1 i'm not going to prosecute. would you agree with that? >> yes. >> okay. 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 want 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 lift to the individual officer to decide whether to initiative prosecution in the case that you've described, then it does seem to be perfectly legal. 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 at the court's request -- >> 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 a class of people. that is millions of people.

and therefore from an expert in these areas, from a prosecutor's point of view and from even some defense attorneys' point of view that 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 that we operate here. now, i'm sure that you know but 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? >> on the first point let me observe that uscis has many thousands and thousands of adjudicators. if one of them told you that we are not allowed to use any judgment in deciding whom to prosecute that person is directly violating the secretary -- >> it hasn't been one of them. it's been many and it's been multistate. i have a little concern about the information i'm getting from the administration concern to what i'm getting from the frontline people. attorney general. you want to weigh in on this prosecutorial discretion? >> thank you, congressman. i think it's great to go back directly to this point. because [ inaudible ] has spoken about this. they know you need a

case-by-case basis. and they're basically making a mockery of all this by using these magic words. i don't mean to attack the professor here since he was formerly in this job. but 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 the professor discusses self-selection as it says in judge hannon's opinion no one -- the only -- of the 5% that aren't making it through they're not making it through because of procedural errors. there's 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. i'm guessing. >> i see my time has expired. i yield back. thank you, chairman for fitting me in here. >> thank the gentleman from

pennsylvania. the chair will now recognize the gentleman from florida mr. deutsche. >> thank you, mr. chairman. mr. chairman, in less than three days the department of homeland security is going to run out of funding. at that time, critical security operations are going to be scaled back and others will be 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 and put another 30,000 employees on furlough. their 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 they have 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 have small children never chose to break the law from the only home that they've ever known. now, with little time left until our homeland security funding expires, this committee is using precious time on a 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 judiciary branch. and questions on whether the president's executive orders on immigration are constitutional are being heard in courts as we

speak. i happen to believe that 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 that defunding dhs will not advance my republican colleagues' 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 will slow down deportation. now, my republican colleagues want a border security enforcement only 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 that it is handed. that means exercising discretion choosing which deportations should proceed and which should be put on hold or as the president calls it deferred. do we report a member of gang or college student who arrived here illegally when she was three? do we deport the mother of an american child or do we try to keep 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 question that is 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 summer with a felony or a 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 thought should also be the priority of this congress. thank you, mr. chairman. i yield back. >> thank the gentleman from florida. the chair will now recognize himself, gentlemen laxalt, i want to make one observation before professor lemosky and i have a conversation. my colleague from new york, mr. nadler, suggested 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 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 expediency. 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 that was just political grandstanding. so if you can work around the first amendment limitations and require disclaimers so we really know whether a candidate or an office holder means what he or she is saying it would be helpful to me. i wouldn't feel as naive and perhaps you wouldn't, either, for 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 that i laid out with more detail in the written statement. but to summarize them briefly, one, the president cannot refuse

to substantially spend the resources congress has provided. >> so if we fully funded everything he wanted with respect to dhs he could not suspend any deportations? >> i think that is an unanswered question. >> 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. it's just never been decided by a court because it would be rare to find a law enforcement agency [ overlapping speakers ] >> 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 just 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 employee's wholesale refusal to enforce the law? what remedy exists for us? >> well the legislature could very specifically supercede the decision. there's nothing in the statute that specifically supersede's the president's priorities. >> you mean the legislative branch could put in that statue the word shall. you shall prosecute? >> that would not nearly be enough. >> what should we put in our dhs funding to let the president know? help us write that bill professor. >> i don't know that i could draft it off the top of my head. >> take a crack at. >> it okay. well, the legislature -- congress could do something similar to what it did when it mandated very specific priorities. there's language that specifically mandates a priority on national security, there's language -- >> why does the legislative branch have to pick priorities? why can't we just 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, right? if the d.a. is not enforcing the law, 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. but i don't see this as being one of them. >> do you think the consequences of elections might have been why the president waited until after the mid-terms to issue his executive order as opposed to before it? >> well, yes and no. i'm not sure if the outcome of the election so much as the desire to avoid the kind of political confusion that was a result. >> it's not political confusion, professor, with all due respect. this i'm trying to understand what the limits are. there are at least three different categories of law. there are 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 there are 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 that the executive has the power to use prosecutorial discretion in all three categories of law? >> it would depend on the facts and the specifics. >> give me a fact where a president can refuse to do something that congress tells him or her to do by a certain date. that is not prosecutorial discretion with all due respect professor. that is anarchy. >> i agree with you, congressman, that congress if specific enough could foreclose the access of a particular type of exercise of prosecutorial discretion. my only point is they have not done so in this case. >> let me ask you this because i'm out of time. can't president suspend all deportations? if not why not? >> i believe not. that would contra veen both the acts. >> out of the 11 if 4 million is okay can he go up to 8? >> my answer to that question is the same as the one i gave earlier. it's impossible to answer

without the empirical knowledge of whether that would still leave him with the ability to substantially spend the resources congress has provided. >> what i would love if you can -- again i'm out of time -- i want you 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 of resources to exercise discretion? >> that question has simply never been answered. >> i'd love for you to take a crack at it. your next law review article. i'd love for you to take a crack at it if you'd be willing to do so. chair would now 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' views on this issue, mr. congressman. >> do you think that's a reasonable solution? >> you know, we've 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. 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 believe that there are limits in this area. we've kind of gone over them ad nauseum. but the president has overstepped his constitutional authority to take care and execute. and as we just discussed, failed to do case-by-case. and in almost any way you analyze. >> thank you, i appreciate that. >> case-by-case analysis. >> i want to move on. let me just make the point they think should be self-evident. if congress has not give nt president the resources to deport all 11 million undocument undocumented immigrants. it seems that the department of homeland security should have the ability to prioritize the deportation of felons over the deportation of families. 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's

in this country on an undocumented basis. now, in nevada, the office of attorney general is not self-funded, correct? >> i don't understand. >> your funding is provided by the state legislature true? >> yes. the general fund, yes. >> so you'reso you joined this lawsuit and made the decision i believe on january 26. 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's my job to -- >> i'm not arguing that you should have. i just want to establish the fact that you didn't correct? >> you know -- >> it's a matter of public record. i want to make sure i'm clear and you're clear an the

committee's clear. you didn't consult with the governor. >> as is in the record, ourhjw offices certainly communicated about this issue. >> i appreciate that. if i could end neither record the "wall street journal" 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 adam laxalt went against the governor's wishes and joined a lawsuit filed by 25 other states. two of you are both republicans who agreed that the current immigration system is broken and that comprehensive reform is necessary, but mr. sandoval 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 tubingook

unilateral action. would it be reasonable with his disagreement with your actions to defund the office of nevada attorney general? >> mr. 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. and a lot of this is much ado about nothing. the governor and i work together on many many issues every day. and i'm the legal adviser to all of our agencies as well as all of our boards and commissions. so this is an unfortunate one issue. but as i said there is no issue with the governor and i. >> thank you. my time has expired. i hope you would also agree based on that same logic that even though there's a disagreement between the president, democrats in congress and congressional republicans, it would be unreasonable to use

your phrase, to defund such an important agency the department of homeland security, simply because of a political dispute. i yield back. >> thank you my friend from new york. before i go to the gentleman from idaho, mr. laxalt i would say i think 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 lying to point out my good friend mr. jeffries is comparing apples and oranges. there is 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 actions. and 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 that clear. because there hasn't been -- 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 pass through congress. so there's nobody here on my side who's trying to defund this. mr. legomsky, 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. and i was -- 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 ini.n.s. 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 is why i think my client should be a low priority. in that case i would hope a reasonable i.c.e. agent would take that in consideration. >> i asked that many times. you know what the answer was every single time? no. because they never did that. because it was based -- you're confusing what's really happening here -- and i've been listening to you very clearly. can you name -- you said your own words were that there is a direct criteria so there's a threshold of criteria. can you name one case that has

been put in deportation or removal proceedings? just one case that has 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 in his order -- judge hannon specifically ordered the government to give some examples of cases in which people were found to have met the special criteria but nonetheless were denied [ overlapping speakers ] >> have they provided that information? >> that's what i was leading up to. not only did they provide the information, but but mr. neufeld in his sworn affidavit offered several specific examples of such cases. nonetheless judge hannon inexplicably said the government has not provided indications of cases. >> mr. blackman? >> paragraph 24 the declaration the only citations were gang membership or gang affiliation or fraud. the only examples the department of justice could put forth when defending this policy was gang

member or fraud. the gang membership would make you a high priority for national security risk. fraud i don't think there's much discretion saying someone committed fraud. the only examples -- >> are you saying fraud in the application or previous fraud? >> previous fraud for lying on the application. yes. for lying on a previous application, right? these are the only examples in neutral declaration brought forth. if these are the best examples they have there isn't much discretion. >> especially the fraud criteria would make you ineligible for any form of relief under immigration law. >> yes, the secretary's policy has nothing to do with the case-by-case expression. there's not much there. that was in the paragraph 24 neufeld order. >> you say it is not illegal to tell a person we're not going to proceed against you, right? that's not putting you in deferred action. and 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're affirmatively telling them that. >> but the reason you're doing it because you want to grant them benefits. that is the main difference. the reason i had cases where they were put in deferred adjudication. and it's because there was some criteria that they met, they were either helping the prosecutor, they were helping the local police. there was 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. and that's what this administration is 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 it would turn on the empirical question of whether after doing so he were still able to substantially spend the resources congress intended. >> 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 pick 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 not 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 what's illegal. >> the gentleman is out of time. the professor may answer if he would like to. >> as you know congressman, especially from representing people in the past, there are lots of reasons people have been granted deferred action including a range of humanitarian reasons. as for your last example where he granted only to mexican nationals? i would indicate there are lots and lots of cases where presidents have granted functionally equivalent discretionary relief to people based solely on their country of origin. so that would present a closed question. >> based on cps and something that the law already granted the president the authority to do. so let's not -- [ overlapping speakers ] >> the gentleman is out of time. i thank the gentleman from idaho. the chair will now recognize 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,

could i have my staff assistant hand out the memorandum that was november for all of our witnesses to have a copy? >> yes, sir. >> thanks. >> while that's being done could i ask unanimous consent to put in the recommendations of nefeld and cb commissioner? >> without objection. >> thank you, mr. chairman. first of all, i think we should use this document because it's a letter written 1999 signed by henry hyde and lamar smith and bill mccollum and a series of other outstanding republican chairmen of this committee. in which they write 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. so i just want to state for the record that not our party but the majority party has stated and stipulated through this memorandum that they believe in discretion and that the administration should use discretion. and in the memorandum just for the public it says we write to as many people believe you have the discretion to alleviate some hardships. and we solicit your views as to why you have been unwilling to exercise such authority in some cases. in addition, we ask you to view the 1996 amendment eliminated that discretion. >> will 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. if i could have that time back. because i was trying to have a conversation. >> i'll be happy to give you time back if you put anytime proper context the letter -- >> the gentleman from illinois

controls the time. >> you've got three witnesses to one already. >> because when you left the room to talk about this -- >> the gentleman from illinois controls the time. >> it's 3-1. it's stacked. >> well, 3-2 right now. >> 3-2. okay. 3-2. >> just so the gentleman knows we stop the clock at -- >> i came in here to try to have a conversation. but you see how it gets boiling here. just reading a memorandum signed. it's here. i've entered 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 it says indeed i and regional counsel have taken the position apparently well-grounded in case law the i.n.s. has prosecutorial

discretion in removal proceedings. see attached memorandum. further a number of press reports indicates i.n.s. has already employed that discretion. optimally removal proceedings should be terminated only upon specific instruction from i.n.s. officials issued in accordance with agency guidelines. however the agency has not promulgated such guidelines. 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're a politician. right? you're elected. i'll find it. it will say elected representative. so you ran for public office. so i can find you other definitions of politician.

so just that we're clear you're 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 law, 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 fifth 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 found a judge who had already -- not him but in his district so they could go. 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 was the attorney general, tweeted "it's unconstitutional." any of you read into the decision in anybody read into the decision? he said it was unconstitutional? nope. yet you have the governor of the state of texas a form attorney general, saying it's 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 spoke 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? 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. so it's always about the criminal. it's always in context. even my friend, i'm sorry he

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 l.a.x.? 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 documented and have overstayed and are part of the 11 million. and therefore, but can be provided relief under the president's order. so my only point to you is you're not going to deport 11 million people. this is a political case. it will be judged on its merits in the supreme court. i'll just end with this because the chairman has been -- mr. chairman, i want to find a solution to the problem, not keep having hearings here where the four distinguished jurists 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 rapists and murderers and not people trying to raise their families in the united states that are caught up in a broken immigration system. and lastly this is a very perilous place for my friends in the majority. because you 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. and that's a community. we're not a community in which the undocumented and the documented kind of live in a caste society. you know what fourth of july? we're having hot dogs and hamburgering. and on thanksgiving we're having turkey all together with our papers. >> i am trying to treat my friend from illinois in a good way. >> you're so generous and i apologize. >> you do not need to apologize. i thank the gentleman from illinois. the chair would now recognize

the gentleman from texas, the former u.s. attorney mr. radcliffe. >> 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. we kicked him out of south carolina several years ago [ laughter ] >> he's got warrants outstanding. he's from georgia now. >> i want to clarify again -- we did this last time. it's groundhog day. here we go again. the 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 this discretion of illegal or crossing. it is not dealing with this issue. so basically to take a letter at the time when things were taken out of a '96 legislative reform in dealing with this let's at least be fair with the letter. and to come up here and to use a letter and take people who are no longer in this body who no longer can defend themselves, even some who happen to be here just not in this committee, to

say that is just wrong. i believe the gentleman from illinois has a good heart. i just 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 appear an argument that is not there. this is what's wrong right now with this. this is the wrong with this argument. this is what's wrong the american people don't get. and i appreciate the gentleman yielding with. yieldinging. with that i yield. >> thank the gentleman. not sure if my faux-pas offended south carolinians and georgians but my apologies to both. >> probably equally. >> i thank all the witnesses for being here today. enjoyed reading your testimony and hearing some of it. professor legomsky, 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 it what he's doing and think he's taking a 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 are here illegally or no. 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've acted illegally. they've entered illegally. i have knob oklahoma why to that. but the phrase illegal alien offends many people. because you're defining an entire person by one act. >> so to the chairman's prior question, i'm trying to as 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 a thoughtful question that mr. gowdy 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 he has. one of the factors that 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. do not believe they have violated the apa. basically the reasons i can state succinctly, the only argument made for why the apa notice and comment procedures might be thought to apply would be that they didn't really involve the exercise of discretion. for all the reasons give nn myn in my written testimony there's simply no factual record in the report for that conclusion. >> your written testimony that was provided doesn't address is the government's response in seeking a stay to that injunction. do you agree the government's on solid legal footing there? >> i'm sorry. do you mean requesting this stay? >> yes. >> i do. a stay is addition discretion judgment. certain factors inform is how likely are you to succeed on the

merits? how much damage will there be on either side if the stay is not granted and so on. i think reasonable minds could disagree about the stay. my own view it would make sense to grant it. >> 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, what i would refer to as folks in this country illegally. can you explain to me how the government would be irreparable harmed? >> 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 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 then this money would be wasted. and in the meantime the

government does have to continue its preparations if it's to resume this on schedule. >> well, so the government asserts to your point quote 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 you agree with the government's assertion with that respect? >> the gentleman from texas is out of time but you can answer the question as succinctly as you can professor. >> i strongly disagree with the idea texas is going to lose even one penny because of this for every reasons. they never allege are going to have to hire a single additional person to process these drivers licenses. it's a marginal additional cost not the average amortized cost that should count. >> wait a minute 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 of the state of texas

of $130 per license times hundreds of thousands of folks in the state illegally. >> two things. the first point -- >> as quickly as you can. i'm already two minutes over. >> i'll go to the second point. the second point is that while texas to its credit offsets that cost by the revenues it would receive from the applications, it still comes out to a negative if that's all you take into account. 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 of dapa and daca. there's 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 if you adopted this theory i of [ inaudible ] think for a moment what it would lead to. it's the mere fact that when a federal benefit is granted, someone could then apply for a state benefit. for enough to confer standing. every time uscis 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. the chair will now recognize the gentleman from michigan, mr. bishop.