emanates from article ii section 2 case or controversy language and something all litigants, all branches of government have to satisfy to litigate in federal court. the standing requirements, are the same for all branches of government. litigation certainly isn't the only way that the executive branch can enforce the laws, but it's a very good and freely available option, as it should be. so why wouldn't litigation also be an available option to congress when it suffers an institutional injury? members of congress are expected to defend congress' law making prerogative by all means available. in fact, your article xi oath demands this, and litigation may be the best and most tailored proportional remedy when the executive branch fails to faithfully execute one of your laws. now, you may not want to impeach. you may not want to cut off appropriations for unrelated

programs that you otherwise actually support. in fact, those are more drastic remedies, and frankly they won't remedy the problem. they won't force the executive to faithfully execute the laws. if all you want is congress is for the executive to faithfully execute your laws, peaceful judicial resolution may be the most tailored and appropriate response. so all of this reveals a glaring deficiency in those who criticize the committee's draft resolution. states can sue to preserve their power. the executive branch it sue to preserve its power but somehow magically congress can't. i guess under this logic congress is some sort of institutional orphan that's uniquely incapable of being injured enough to establish standing to sue. the absurdity of that position is belied by extensive case law that recognizes that

subdivisions of congress in the form of committees have standing to assert institutional injury caused by the executive branch. these cases, most of which have been litigated here in the footprint of the d.c. circuit, span numerous administrations and congresses. they include cases like united states versus at&t, house judiciary committee versus buyers, committee on oversight versus holder. these are cases that all involve instances where the executive branch has refused to comply with congressional subpoenas, and in all of these cases the house has passed a resolution that authorizes the chairman of these committees to initiate litigation to enforce these subpoenas. and in all of these cases the committees had standing to vindicate the injury to their investigatory and oversight power. for those who may think litigation-enforcing subpoenas is somehow special or different

from litigation enforcing a law like the aca, would i just say respe respectfully the supreme court disagrees. the supreme court has made it clear that subpoenas are, quote, an indispensable ingredient in law making. in other words, a failure to comply with the legislative subpoena is an injury to the law-making power of congress itself. so either all these subpoena cases have been wrongly decided or the obama administration will have to argue that when the executive branch injures congress' ability to investigate by not honoring a subpoena that's sufficient injury to establish standing but somehow when the executive branch suspends a statute or a portion thereof and in fact writes new statutory language all by itself, there's suddenly no standing. this would be an absurd result. if ignoring a congressional subpoena is sufficient to establish standing, ignoring a

law should be sufficient as well. thank you for your time. >> miss foley, thank you very much. mr. lazarus, you're now recognized. >> thank you very much, chairman sessions. >> having counsel here -- >> thanks to my colleague for helping me out with these challenges. thank you, mr. chairman. thank you for your exceptional cordiality and welcoming all of us this morning. >> yes, sir. >> thanks to you and ranking member slaughter and the other members of the committee for inviting me to testify into this -- in this inquiry into the resolution that speaker boehner has proposed. >> can you please pull the microphone forward. >> boy. >> okay now? >> i think that is better. >> all right. >> you missed my thanks to you all, but i won't repeat it.

thank you. the resolution that we are supposed to address here would authorize a lawsuit that would seek relief from alleged illegal or unconstitutional conduct in quote, implementation of any provision of the affordable care ability, and speaker boehner limited the focus or limited his focus when he introduced this resolution, when he announced it, he stated that the lawsuit would specifically target administration decisions to postpone and adjust effective dates for requirements relating to the so-called employer mandate. that's the requirement that large employers provide their workers with health insurance or pay a tax. i am senior counsel to the constitutional accountability center which is a public --

>> the microphone appears to be leaning up. if you maybe lean it directly, there, i think that may help. >> okay. >> let's see if that helps as all. >> is it working now? >> is this one on? >> let's turn -- >> let's see if we can maybe put them both. your testimony is very important and we want to make sure everybody can hear you. now aim that a little bit closer, and we'll try that. now we'll turn this one off that's right here. >> how are we doing now? >> better. the gentleman is recognized. >> i mean, i certainly heard your testimony. >> the deck isn't stacked if we're using the same deck which we seem to be using. in any event, what you missed wasn't terribly important, so i'm going to just go on. presumably the lawsuit -- i guess i want to just clarify that my colleague's testimony here on my right sometimes addressed issues other than the

aca employer mandate. my remarks are not going to do that. if -- if -- if members wish to raise questions about that, i'd be more than happy to respond. i must say i do think that none of the areas in which the president has been charged by his opponents with violating the law or violating his constitutional duty to take care of the laws being faithfully executed, i don't believe any of those charges that i have seen to date really hold up but i'll focus on this one but that's what the resolution before us is about. so in any event, lawsuit that's contemplated by the resolution programbly will assert frequently heard claims that we've heard over the last year, that postponing the employer mandate as well as other provisions of the aca

constituted abuses of the president's discretionary authority and hence these arguments run. those actions violate article ii section 3 of the constitution which is the take care clause that we're all now quite familiar with. my testimony will primarily address the merits of this claim. my co-witness, walter dellinger, will primarily address the questions whether the house of representatives would have standing to pursue such a claim or whether the claim would otherwise be judicial. regrettab regrettably, mr. chairman and members of the committee, i must observe as i did before the house judiciary committee in december of last year that these claims of wayward executive conduct import the constitution into what are in reality political and policy debates. they mock the text and original meaning of the take care clause.

they flautt long-standing supreme court practices and -- exercising presidential judgment in carrying laws into execution is precisely what the take care clause of the constitution requires. it is precisely what the framers expected when they established a separate executive branch under the direction of a nationally elected president an charged him to take care that the laws be faithfully executed, and this is precisely what the president and the members of his administration are doing in implementing the aca. it's important to note the simple fact, and it is a fact, the president is not refusing to enforce this law that will constitute his signature legacy. he is phasing it in in a manner

that is best suited in his and his administration's judgment to ensure its long-term effectiveness for all the stakeholders who will benefit from the implemented -- the successful implementation of that law. the treasury department's announcement that it was going to postpone the employer mandate's effectiveness a year ago provided for transition relief to continue working with employers, insurers and other reporting entities to revise and engage in real world testing of the implementation of aca reporting requirements, to simplify forms that are used for this record, coordinate public and private sector information technology arrangements and engineer a smooth r smoother transition to full implementation in 2015. the department stated its intent at the time to publish final rules after this dialogue with

stakeholders was complete, and on february 10th of this current year the administration, having completed that dialogue, issued its final set of results. in these final rules the administration further refined its phase-in procedures with further provisions to assist small businesses. i won't read out the details of what the -- what the final rules provide, but i'm perfectly happy to address that if any members wish to ask questions about it. the administration's approach to phasing in the aca is neither unprecedented nor a partisan practice. indeed, michael levitt who served as president bush's health and human services secretary said that this decision was, quote, wise, unquote. so if it was wise, is the current postponement illegal? on the contrary. treasury explained such temporary postponements of tax reporting and payment

requirements are routine, and the treasury cited numerous examples of such postponements by both republican and democratic administrations. for example, and it's an important example, when the bush administration implemented the medicare prescription drug program in 2006, it waived enforcement of the unpopular late enrollment period -- late enrollment penalty for one year for some beneficiaries. it delayed key elements of the law's method allergy for calculating the share of premiums paid by some beneficiaries to reduce premiums, and it limited enforcement of the law's medication therapy management requirement to ease the burden on insurers. now, it bears emphasis that there is simply no material difference between these decisions by the bush administration and the obama administration's approach to implementing the aca. all were reasonably considered necessary temporary adjustments,

and as such they were certainly legal and constitutional, and i think i just should note that the medicare prescription drug benefit was controversial in partisan terms. many of my progressive friends and experts on health care were very much opposed to it for various reasons. the fact is, however, after the bush -- and it had a very bumpy run at the beginning. it was very unpopular. it had a lot of transition problems just like the aca has had at the beginning. the fact is the medicare prescription drug benefit is a huge success, and -- and the steps that secretary that secre and president bush took evidence evidently were well based and i think it's important that the affordable care act also appears that it is becoming already well respected and appreciated.

now, i do want to note that the take care clause is not a blank check to presidents intentional to implement laws, such as governor mitt romney's pledge to terminate implementation of the aca as soon as he took the oath of office. that would violate the laws and that would violate his constitutional obligations. but good faith, prudent, reasonable phasing in adjustments are routine and appropriate. i should emphasize briefly in these remarks that applicable judicial precedent places these kinds of timing adjustments well within the executive branch's lawful discretion. agencies are compelled to initiate required actions when they have been unreasonably delayed. courts have found delays to be unreasonable only in rare cases

where unlike this one interaction lasted for several years and the agency could offer neither a persuasive excuse nor a credible end to its dithering. in the leading case, the late chief justice renquist rules that unless, quote, an agency has adopted a general policy that's so extreme as to amount to an abdomen occasion of it's statutory responsibilities. neither are regulatory delays implementing the employer mandate an affront to the constitution. i think we should take a look at the text of the take care

clause. particularly, the words faithfully and even more striking phrase, take care. the framers could have prescribed simply that the president execute the laws and the legislative history of the constitution shows that they deliberately chose not to do this. why did they add the words faithfully and especially take care? defining the president's obligation in this fashion seems to me incorporates that the concept that the president's duty is to execute laws in good faith and to exercise reasonable care in doing so. scholars concur that this phrasing is that exercise judgment and handle his enforcement duties with fidelity to all laws and the entire law that he's enforcing, the entire aca, not just to a specific provision of it, including, indeed, the constitution.

so when the professor says he's worried about what the next president might do and how this kind of authority could be abused, that's perfectly sound concern and indeed past presidents have abused that authority. there certainly are examples of presidents claiming that they are merely making these kinds of adjustments, but in fact, what they're doing is stonewalling an implementing law all together. i have a few examples of those in my written statement. i'm not going to go into them. it's a problem, but that doesn't mean that we should try to interfere with an administration's ability to responsibly implement laws when that is, in fact, what they're doing. so, in sum, i would say that the president has authorized a minor temporary course correction regarding individual aca provisions that's necessary in his judgment to faithfully execute the overall statute,

other related laws like medicare and medicaid, and the purposes of the aca's framers as a legal as well as a practical matter that's well within his job description. thanks very much. >> mr. lazarus, thank you very much. welcome to the rules committee. we're delighted that you're here. the gentleman is recognized. >> mr. chairman, i'd like to begin with something that you said in your opening remarks this morning when you noticed that this was not a democratic or a republican issue. i think that is certainly true of the issues we are debating and discussing. i've been struck by how many conservative commentators and professors and former office holders have taken the position that the idea that house or its speaker to go into court and sue the president for how the president administers the law is a bad idea and is not going to

be successful. take for example, jack goldsmith who was the chief legal officer of the department of justice under the recent president bush. jack wrote that, quote, conservative legal thought used to maintain that standing was a vital element of the separation of powers and conservative legal thought used to resist institutional congressional lawsuits against the presidency, but apparently not anymore. professor goldsmith said he agreed with the national review online that the lawsuit will almost certainly fail and should fail for lack of congressional standing. this is no technicality. this is a profound part of what limits the role of the judiciary in our country. the court announced it had the authority to make determinations of constitutional law but it

didn't have inherent superior claim over other branches of government to interpret and enforce the constitution, but it had a job to do. and that job was resolving disputes between litigants who had a real personal stake in the outcome. the court said we have to resolve those disputes according to law and the constitution is law. so we have to interpret the constitution when we resolve lawsuits between litigants. but we don't make up a lawsuit. we don't make up a personal injury where none exists. just in order to have a lawsuit. i think as recently as june 24th, 2013 when the court decided two cases, they made it clear that eight of the nine justices flatly reject the theories put forward by my distinguished colleagues on this

panel who would suggest that there's some merit to this notion. in holingsworth which is the california gay marriage case, five members of the court held that those who had sponsored the referendum had no standing to litigate that matter in the supreme court. the reason they did it is their job was over. when they sponsored the referendum and it was passed, their work was over, just as the legislature's work is over, the court has said, just as the legislature's work is over when it passes legislation. its job is done. it has no institutional interest in how the law is administered that would allow it to bring suit. as the chief justice roberts said, to have standing a lit gant must seek relief for an entry that affects him in a personal and individual way.

this is an essential limit on our powers. the chief justice said it ens e ensures that we act as judges and do not engage in policy making properly left to the elected branches of the government. justice scalia, one indication of how this is not a partisan divide is how powerfully the conservative justices have opposed the notion that institutions can sue one another. justice scalia wrote in windsor also june of 2013 that the framers, quote, rejected a system in which congress and the executive can pop immediately into court in their institutional capacity whenever the president implements a law on a matter that is not to congress's liking. i think that between the five justices who took the position

in holingsworth and in windsor, only justice alita has suggested that he would support such a theory and i think my distinguished colleagues here being quite capable and widely admired scholars are able to come up with a constitutional system that makes some sense, but i think they recognize they are criticizing and both have been critics of the supreme court's decision in the standing area, that they're not suggesting what's now the law but what they would propose to be the law. chief justice renquist said in the case of rains versus byrd which rejected that members of the house and senate could sue about how the president implemented a law. he said there would be nothing irrational about a system of granting standing for the president and congress to sue

one another. he said some european constitutional courts operate under one or another variant of such a regime, but it is obviously not the regime that is obtained under our constitution. they're proposing essentially a variant of the european model in which the courts resolve disputes between the chief executive and the legislature, instead of leaving those disputes as they properly should to the political process. a court's authority, as justice scalia said, we perform the notion of constitutional rules incidentally, by accident that is, because we have the job to do of resolving lawsuits and that comes up as part of our job. now, the critical point here as the supreme court has said, is that once congress makes its choice in enacting legislation, its participation ends. that's why the subpoena cases are different.

when you're in the process of engaging in law making and in aid of that law making capacity you issue a subpoena, you have the authority to do that. you don't have a role in how the executive branch administers the law. what's quite striking for professor foley's testimony is that she believes that her theories would fully support the president being able to sue the congress. that's not the system we have in this country. just today the news reports that the house is proposing budget cuts in tax enforcement that the white house says would cripple its ability to carry out the affordable care act. i have no idea what the merits of that contingent are, but it's not reasonable to think that the president should bring suit in federal district court to the house of representatives to provide the sufficient funding so that they don't repudiate the

president's ability to carry out his function. my colleagues suggest four criteria for determining where there's litigation. i think that's not the law. the notion that the workings of political branch of the government are nullified would give them the authority to suit i think fails for many reasons. first of all, as i said, their job is over. secondly, this is not the legislature. the proposal here is for one branch to bring a lawsuit. it's not -- we don't have a uni legislature. one house could not bring it. indeed, the house that would bring this lawsuit is not even the house that passed the affordable care act that

included the provisions that required businesses to have complete coverage and had certain effective dates in it. that was the 111th congress. that is, i believe, the 113th congress. that is perhaps a small point but it goes to show that this is not a kind of institutional injury. the 111th congress, god bless them, has gone upon its way. some of the members came back, some of the members didn't. different parties are in control, but the idea that this is an institutional injury when it is essentially just a dispute about how the president interprets a law. let me respond briefly and i will close with this. professor turley uses his considerable rhetorical powers to paint a picture of an uber-presidency where there's rule by majority of one and the legislative process is displaced. i see nothing like that in any

of the tales about which we speak. neither the president nor the treasury department has asserted any prerogative to disregard the law, to suspend the law. yes, the president will accomplish some things by executive action he would prefer to accomplish by statutes by statutes are permanent but the president has has to have statute authority. nobody believes the president has authority to issue dictate. and they find the authority in the statutes themselves. mr. lazarus, my colleague, has laid out in his testimony all of the arguments for why this fits within the regulatory authority conferred by the congress on the treasury department to implement statutes. what we are talking about here is, as he says, whether it is

understood, particularly in light of the background where other presidents have taken effective dates and have allowed transition extensions in those effective dates, whether it's assumed that the administration would have such authority in carrying into place a complex new statutory regime. there's nothing remarkable about that. finding its source in the very authority conferred by congress on the administration. this is an instance where there are remedies on behalf of congress, as justice scalia said, if majorities in both houses care enough, they have innumerable ways to compel executive action without a lawsuit, from confirming presidential pointies to eliminating funding.

so in closing, let me say that i think history here should be your guide, and what you see from history is silence. chief justice renquist recounts all the great balance between the president and the legislature throughout our history and he notes that never did it seem appropriate for one of them to sue the other for how they were carrying out their functions. i think it's quite dramatic that the professor believes that the president could bring suit if they thought that the speaker of the house had assumed the role of commander in chief. the point here is not who has the better reading on this particular question of whether there's an implicit transition authority to smooth the transition to the new requirements. the critical fact that this is merely a debate about the best way of construing legislation and the house has no legal

interest in that. now, whatever the right answer, this may be an important matter in terms of extending healthcare to 25 or 30 million americans and making sure that business has time to comply with the new requirements as business desired and as i believe this house overwhelmingly supports. that's what this transition is carrying out. i think it's safe to say that never in our history has such a radical change in the role of the judicial branch been proposed to deal with such a routine question of add minute administrative process, allowing this kind of suit by the congress every time it disagreed with how a president carried out the law would be a radical liberalization of the role that the judiciary has played and it is a transformation that this committee and the house should decline. thank you, mr. chairman. >> thank you very much. to the committee witnesses, thank you very much.

we're now going to move to the third section that we have today and that is to the members who will have questions for the committee. and i will yield myself such time as i consume. mr. lazarus, this question will be for you, but it refers back to professor foley's, what i believe was her example of case law of the four specific criteria that she believed that must be met. i know there was disagreement by you, mr. dylan jer about the significance of that case law or those four pieces, bullt i do defer to you the words institutional interest and the word reasonable was used and that you believed among other things when talking about medicare part d prescription drug was the example where under president bush what might be george w. bush, there was an

example that the president, through mr. levitt, who is his secretary of health and human services evidently waived or put off sections of the law. so coming back to then professor foley's ideas and perhaps mine, was there a disagreement by the united states congress, either the house or the senate, where they passed legislation, or were they objected as a body, not as an individual, but as a body at the time? >> i'm going to rely upon your viewpoint there. you say the president did this action. was there not agreement with the bodies of congress? >> well, i can say that congress did not in some collective way respond to what the president did. if there had been an agreement by both houses of congress that

what the president was doing in terms of implementing the medicare prescription drug benefit, the remedy would have been to pass a law that changed what it was that the president was doing. that was not done. that would have been the appropriate thing to do. certainly no one suggested that they run to the courthouse and ask the court to tell the president not to do what he was doing. that would have failed for the reasons that my colleague here has said and would have been very misguided. so the answer then would have been to pass a law and that would be a part of the answer now. >> well, my response then to the gentleman would be, there was consent, there was agreement. there was not disagreement on what the president was doing. it was viewed as being a part of what was not only necessary and regular but what was consental between the body that passed the law and the president of the united states. we're here today because of a

disagreement. we're here because we believe the president has extended his authority, notwithstanding individuals interest of the institution or reasonableness. i am aiming back and attempting to the constitution of the united states that i believe has an overriding interest in what we do today. i believe institutional interest is important and that's what we're attempting to establish here today. mr. turley, the crux of what i think this lawsuit is about is because the president has violated what i believe is a core principle of the constitution. i believe it's the separation of powers, and following to faithfully execute the laws of the country. how do you view the difference between congress article one powers and the powers the president has under article two? >> it's a critical difference because the madisonen system

creates three equal branches, but like animal farm, some are more equal than others. i've always said that congress is the thumping heart of the system. this is where the magic occurs. this is where factional disputes are supposed to be worked into a ma jor therrien compromise. the stability of the system happens in article one and you can see that reflected in the amount of effort the framers put into article one, the delicate balance that occurred in the bicam ral system. all of that is a reflection of that function. by the way, it produces better products. when you have legislation go through the very difficult process of the congress, it tends to cut off the edges. it tends to create a broader base of support.

when you have presidents who govern alone, that's when you produce the very thing the framers wanted to avoid. in that sense i will certainly confess to what my friend walter said, all my academic writings tend to favor congress in the system and i tend to jealously protect congressional authority where i disagree with my friend and it's hard to because whenever i hear walter speak i end up finding myself in agreement until i catch myself and check for my wallet. where i disagree is i think there is a fundamental difference in terms of particularly these cases by the way. when you look at holingsworth. what was involved were people who were pro opponents of a state referendum. i'm not sure how walter gets to eight. i can't count up to eight. i can count up to eight but i don't count eight justices. he is certainly correct about

justice scalia's position on legislative authority but i extend your question. but i disagree with some of the cases that tend to mind the line between article one and article two. >> thank you very much. part of the testimony this morning seemed to indicate prior congress's past law that really we should not stand behind or really had no inherent interest as an institution, and that would tend to say nor should the president have to follow what i believe was law. i came to congress, went to a small school in texas, southw t southwestern.

the law of the land is what we have agreed in the oath of office that i take, that the president takes, the law, rule of law. please discuss this issue about maybe that was a couple congresses ago and maybe this president is not bound by the same set of laws. >> first of all, i disagree with walter's view that that was the 111th congress and you're a different congress. to be fair to walter, that wasn't a big part of his presentation, but this is the same congress as an institution. it's true that the makeup of this body changes. but the problem that i see actually is that members of this body increasingly are disconnected to their institutional interests, that they don't identify themselves with the legislative branch. you not only have a right but a deep obligation to protect what previous congresses have done

even at times when you may disagree with the current policy, there was a time when this building was filled with people who fought for institutional interest even over their own party. that's what the framers actually anticipated. the framers believed that regardless of who was in the white house, that you as a body would fight jealously to protect constitutional turf. what happened is that has resulted in recently a more passive attitude and the executive branch has bled away a lot of authority. this is a body that's anemic. what mr. lazarus was talking about is certainly also true, many judges are hostile to giving access to this body. instead, they stand around like hey praise doctors saying heal yourself with an anemic patient. this is not going to happen by itself. it requires judicial review. it's the equivalent of faith healing. there's no guarantee that the patient is going to get better.

so where we have a difference and i think that this is an important point. we have a different view of the function of the courts. i view the courts, perhaps its most important responsibility, is to mine the lines of separation. it is not a political question when this body goes to court and says the president has exceeded his authority. it has very little to do with what the president's policy is. you're not asking the court to help us come up with a better aca. you're simply asking the court to determine who is the correct branch to make this decision. in my view, that's not a political question. >> very interesting. i grew up in a household where my father became a federal judge for a number of years and understood his love of the law and a balance that existed of the three branches of government. i'm an eagle scout. i studied the merit badges that

we took about governance, cities, states, the national government. and i whole heartedly believe, as you have testified here today, that really what we're looking at is three co-equal branches of government with different obligations under the constitution. in this case, the judiciary is there to resolve differences to rule on the law. with that said, professor foley, there are some who have talked about that they're concerned about asking the third branch of government to adjudicated differences between these two branches of government, the executive and the legislature. is that what the court is there to do? >> the court's job, go back to chief justice marshall many years ago, it's most emphatically the province and the duty of the supreme court to say what the law is and its highest duty is to interpret the

constitution when constitutional questions are presented. look, the courts have waded into this water already. the supreme court in coleman versus miller decided that a group of 21 out of 40 which is a majority of the kansas state senate had legislative standing to assert an institutional injury when the lieutenant governor of that state broke a tie on a proposed constitutional child labor amendment the congressional subpoena cases again show that the courts are quite comfortable wading into disputes between the congressional and executive branches when they believe an appropriate institutional injury is put before them, which certainly refusal to enforce a subpoena would be. it's a denial of oversight power, oversight power is a subset of investigative power and that's a subset of your

legislative power. finally, i'll point out that the 10th circuit case that was decided in march of 2014, kerr versus kickin' looper is another case where the federal courts felt comfortable wading into the disputes between the branches. in that case it was a group of i believe five colorado legislators, all democrats by the way, who sought legislative standing before the federal courts to sue the governor of that state, governor hicken looper, for executing the taxpayer bill of rights that that had opposed politically. the 10 circuit held that they had under the federal constitution standing to assert their legislative nullification, institutional injury claims. by the way, that 10th circuit panel consisted of three federal judges, all of whom were nominated by democratic

presidents. >> interesting. well, i came at this issue through a process in my own mind of trying to look at the inherent authority and responsibility, not just of congress but really of the bodies as we know in reading the constitution, the senate has authority and responsibility among other things in dealing with treaties and how they authorize and approve presidential directives including the statutory authorization of cabinet members. i viewed that the house has original jurisdiction so to speak on budgetary matters. i viewed that our standing was not something that we should take lightly but rather that we

would have to basis. so i've had to come through these calculations myself and i want to thank each of you for being here today. >> we go now to the vice chairman of the committee, the gentle woman from north carolina, mrs. fox. >> we're all concerned about the time here and not saying things that don't need to be said. i want to agree with the opening statement of the chairman and not repeat the things that they said. i think it was an excellent opening statement, and i want to say i agree with him. i also want to say that i have always been concerned about maintaining the rule of law and our constitutional system. that's always been a priority of mine. i believe it should be a priority of all of us in the congress. i agree with mr. turley that we should be very concerned about the prerogative of the congress.

no matter who's president. i think john adams best described our system when he said ours is a government of laws and not of men. that has stood us in good stead in this country since its founding and today we have an excellent opportunity to explore the options, to reaffirm the rule of law and the constitution in the face of what i see is increasingly presumptive executive action, as mr. turley has outlined. professor turley, you've talked a little bit about the legal and societal ramifications of a weakened rule of law and of the president taking on the responsibilities of the legislative branch. i wonder if you might want to make a couple of more comments about that, that you might not have made or that you want to

emphasize from your comments. >> thank you very much. the implications of this dominant presidency which has i think accelerated under president obama are hard to overstay. what we're seeing increasingly is not just in in case a president pledging to go alone but in fact a president who can go it alone. the implications of that are significant. it turns this body into something that's discretion naer. what is happening is not just the rise of the dominant presidency. we have a shift towards what i refer to as a fourth branch. this is a very large federal agency system now which has given prediscretion. really with the aca you see the implications of that branch. we have a tri par tide system with three branches. when you introduce a major player, it obviously has serious

implications. but look what happened here. the aca went to the administration, and what came back were substantial changes, including delays but also changing of some of the meaning of provisions. what the agencies did is they treated what came out of this house as sort of aca 1.0 and what came back was aca 2.0. what the agencies decided would make for a better system. they actually may be right in that. i'm not an aca expert. but they really do not have that authority. they are insulated from the public. so what is happening in the system is we're already seeing a problem where people feel disconnected to members of this body but increasingly disconnected to the government as a whole. that's quite accurate. many of the decisions that govern people today are made in an ins lar fashion by federal agencies. what you're seeing in the aca is

typical of that. this lawsuit is enormously important for that reason. at some point this body has to take a stand and try to realign these branches. if it doesn't, i think that this system is going to change in a very significant and in my view dangerous way. >> well, i really appreciate those comments because one of the concerns that i have had again since being in elected office is the habit of unelected bureaucrats writing the rules and regulations based on sometimes very nebulous laws. it has been my position here that congress has, in the past, aggregated some of its responsibility by allowing that to happen. i believe that in the legislation we write and certainly i have been attuned to this and have worked on this in

legislation i have put forward is that we do not allow the discretion by the executive branch to implement laws in ways that do not represent what i believe congress intended when it passed the law. and so i appreciate very much your emphasis on this, because i think you're right. we do have a fourth branch of government that has developed. i think max vaber said it over 100 years ago, the bureaucracy would essentially take us over. it is a very, i think, dangerous situation that we have, and it is something that the congress needs to jealously guard because we absolutely have got to write the laws more clearly and to stop that practice by the executive branch.

>> i just wanted to add and emphasize something that you said and that is my friends simon and walter talk about the past role of agencies. they also talk about the use of the power of the purse. one of the things i address in my testimony is that there's a growing mythology around the power of the purse. as you talk about taking efforts to try to restrict discretion, one of the controversies of the aca was the movement of $454 million from an appropriate rated purpose to a different purpose. the question is who has the right to contest that type of shift? who has standing under these rules? those types of problems that involve huge amounts of money, the same thing is involved in the state exchanges. you have agency changes that are committing essentially the government to potentially billions of dollars of tax

credits. those strike at the power of the purse. >> i glad that you brought that issue up because i get letters every day from constituents who say, okay, you have the power of the purse, now cut off the funding. b what they forget to note is that when the laws pass the house, they also have to pass the senate. so it is not a unilateral authority that we have in the house. that term about raising revenue has become power of the purse to the public. they don't quite take it to its logical extension. i'd like to ask you also, professor turley, in light of the considerations you've brought up in the president, is there a point that you can identify where the president goes from crossing the line of

appropriately exercising discretion to violating his duty to faithfully execute the law? >> yes. i have said that some of the controversies involving president obama i think wrongly accuse him of violating separation of power. an example of that are some of his environmental changes. under the clean air act, the law is written in a way that gives a great deal of authority to the epa. i said at the time, in fact one of the earlier hearings when asked about it that i thought that was within the strike zone. you can question whether it's a good thing for the president to create a massive new regiment or regulatory system without the approval of congress, but the way that you wrote the law in terms of the role of the epa i thought gave him that authority. i don't feel that way about other areas where he has acted. the aca i think is actually a

very good area to look at. i'm happy to see that the committee restricted this lawsuit to the aca. the degree to which this ends up a pedalers wagon with every grievance against the president, you will guarantee it's failure, the aca has areas which i think are on the other side of that law. some of the changes that were made when we talk about deadlines are really not just deadlines. one of the deadlines that was moved, that deadlines made certain insurance policies unlawful after that time. so congress said you all spent a lot of time debating that after this point you can't sell certain insurance policies. they're unlawful. so this wasn't just some tweak as to whether you have to file papers on this date or not. this was a significant change. but as i say in my testimony, that's not necessarily the

strongest. i think that's strong, but there are other changes the administration made that i do not see. in all respect to my colleagues, i do not see it as the type of standard agency work. if it is considered standard, then we have a serious problem because it means that legislation that you pass is just simply bills 101 waiting for the real legislation to come back from the agencies. >> i want to ask another question about change, focus a little bit about -- the justice department has claimed that the president can refuse to enforce or implement laws that he believes are unconstitutional. both you and professor foley have given us some very good history lessons here today, so i'd love for either or both of you to comment on, have we had

situations in the past where the attorney general or the justice department very made the claim that a president can merely refuse to enforce the law when there is a disagreement about a particular policy? >> the answer to that is yes. i do actually think -- i point out in my written testimony that if you think of it was a six-pointed star, one of the points in that star is the ability of the president to express disagreement with the constitutionality of certain laws. so for example you asked have other presidents done that. president bush, for example, in numerous signing statements suggested that various provisions of congressional enactments, the one that comes to mind is the ndaa, the national defense authorization

act. it expressed disagreement with the constitutionality of some of those provisions that required a congressional notification and the like. so presidents have done that. this president, president obama, has done something quite similar with his refusal to defend in court the defense of marriage act. presidents have done that. i think that's probably within the realm of presidential power because they have an independent duty to defend the constitution. if that's what they believe, they have an obligation not to defend a law that that think is unconstitutional. when it comes to the aca, this president has not taken the position that the aca is unconstitutional. in fact, he fought it all the way to the supreme court, so that wouldn't be applicable here to this resolution.

>> let me finish up here by saying much of what we do here at the rules committee is process oriented because we do believe in the house that process matters. we also work to protect the rights of the minority and guarantee a particular process for operation of the house. we also have procedures designed to apportion its power as limit the power of specific individuals in it, and we've talked about that with professor turley. in spite of that, the president has refused to enforce the law in some instances, ignored the law in others and even changed the law all together. have these actions made our system less stable? i think you said that. i don't know if you wanted to add to that? >> i think people need to keep in mind that it's very easy,

obviously, to ignore the separation conflicts when a president stands before congress and says i'll get this done. people can certainly see the more relevant and immediate benefits of changes in this law or that law. it's not your ox being gored. what you're doing is creating a presidency where you may find in a very short time that the next president directs his or her attention on laws that you value. it's very hard in constitutional law to make this cat walk backwards. if you give power to a president, they will jealously protect it. the presidency has done a greater job in the last few decades protecting constitutional territory, including territory that they took from you. they are very aggressive in that sense. the canning decision was one of the few and long overdue. it moves by the court to reject

that. unfortunately, one of the criticisms i gave in the judiciary committee is that i viewed -- i testified on those recess appointments after they were made and i said that i believe they were flagrantly unconstitutional. one of the things i was shocked about was "the office" of legal council issuing an opinion that i thought was incredibly flawed. it's a great disappointment to me to see them produce something like that. they could not garner a single vote on the united states supreme court for that particular violation of the separation of powers. >> thank you, mr. chairman. i yield back. >> most interesting gentlemen -- >> chairman, just as a matter of courtesy, we might inquire of our witnesses in light of the fact that we have a long ways to go. we've been here now coming up on an hour and 40 minutes and i used to take recesses for a few minutes. sometimes there are requirements. i do have a matter that would

not cause us to lose time by allowing our witnesses to have five minutes if they would need or like to go to the rest room. >> i appreciate, in fact, the gentleman helping me out, because i view it as help. so i would ask the panel, would any of you like to take a five-minute break? there's no pressure here. how about in ten minutes when mrs. slaughter finishes, then we will take a five-minute break -- all i'm suggesting is -- >> i was really trying to help. >> i think you are. so i'm going to accept the help. so the chairman will decide this issue. that is, when mrs. slaughter finishes her questioning, it will come back to me and we will take a five-minute break. the gentle woman is recognized. >> before i start, i'd like to

ask our two witnesses if they have comments on anything that you've heard up to now that you would like to speak to. >> is this working? >> i think you better use the other microphone. >> i would like to make this -- just to address the context of this disagreement between at least some members of the house and the administration on implementing the affordable care act. what is the nature of the dispute and what is the right institutional response of the house? the nature of the dispute is the authority to issue regulations in carrying this out includes the authority post effective date of certain requirements to work with business and give them extension of time. that's the nature of the issue. at every level of government you have something like that. if north carolina were to adopt

a new requirement for automobile equipment and it turns out that there are not enough mechanics in the county to get every car fitted, the sheriff says to his deputies, we're not going to ticket anybody for the first few months. just give people warnings. effective date is july 1. that's essentially what's going on here and as mr. lazarus showed, there's an process of administration that says we can't meet these deadlines, it's not practical, is that within the scope of authority to defer it. i'm not saying that's an arguable question. what's the right institutional response? the right institutional response is to say you can make inflexible deadlines. here you've got an effective date and we know that you can't impose any burdens on citizens before the effective date.

they get to go into court because they're injured. you can't make me do this before january 1 when the law takes effect. can you grant a grace period? what's the right institutional response? there's absolutely no reason to think that the treasure department or the president wouldn't comply with a revision of the law that said when we have this effective date, you cannot give any relief to business, here are the sanctions that will follow if you do. but as the vice chair of the committee said and tells her constituents, laws have to pass the house and the senate. because if you think there should be a rigid deadline and i don't think anybody does think business ought to be under a rigid deadline but if there were, it would have to pass the house and the senate. what is happening here is in lieu of having a law passed by the house and the senate saying that these new requirements have to take effect with no grace period, no transition, instead

of passing that law, if you don't have the political basis or will to do it, the house alone is going into court. instead of passing a law to say we want these requirements on business to take effect immediately. it seems to me that's the inappropriate response to bring in the five guys on the supreme court to resolve this matter instead of having the house and the senate together deal with it. i'm sorry, i didn't mean to take so long. >> first of all, i also wanted to address a point that was made by vice chair foxx about people feeling around the country cut off from the cities by officials in washington. i'd just like to point out that this lawsuit attacks the obama

administration, as walter just stated, precisely for going through a very extensive process of consultation from the health providers, the businesses, patient advocacy groups, insurers, all the people who are going to be affected by the new law -- i don't know whether you heard that. and making adjustments in the law in response to their suggestions and their kerps. so i really -- i have a little trouble understanding why congress would want to ask the supreme court to tell the administration not to do that. i have to say to professor turley who was concerned about the problem of the so-called fourth branch, we do have a big government but that's been for about the last century. i mean, it was 100 years ago

that the congress began creating major regulatory agencies like the federal reserve so it's a reality that we have to deal with and putting some flexibility in the way laws are carried out, unless congress absolutely says you can't possibly be flexible, seems to me to be a very sensible thing to do. i want to comment on one other point and that is that professor turley referred to one of the areas in which the president's critics are charging him with violating the law, and that is with respect to the administration's interpretation of the affordable care act to ensure that people who purchase insurance on exchange can have tax credits and subsidies to enable them to afford the insurance, whether in their states the exchange are run by the state government or by

healthcare.gov, the federal government. professor turley is referring to these lawsuits and saying that this was a serious violation by the president. professor turley did not mention that the only two courts that have actually heard this charge have summarily dismissed it. that was a district judge, respected veteran, clinton appointee in the district of columbia and a very respected reagan appointee in the federal court in richmond, virginia. so there's very, very, very strong case that the obama administration correctly interpreted the law. so saying that this is an example of how he has violated his constitutional duties seems to me to be with all respect, all spacious. >> thank you very much. mr. chairman, before i begin i'd like to ask consent to insert into the record a statement from

mr. charles teefr, a long time house general counsel, former senate counsel, baltimore law professor. he explains that the three house speakers he served never brought a suit like this because it is legally groundless. he calls it, quote, an embarrassing loser, end quote. because of our lack of standing and he also notes the quote, vul ger political, under quote nature of the suit. >> without objection i would enter that into the record. >> i would ask consent to insert a comment warning us that this lawsuit would, quote, distort the system of checks and balances that has stood our republic in good standing for over two centuries end quote. >> without objection i will enter that into the record. >> i wanted to make sure because i have not done it up until now,

i don't want anybody listening to this to come away with the idea that we are not concerned about issues of overreach. we know they're there. modern presidents, we all believe in congress has shifted the power. a number of us have been vocal on that point in the past. the problem is that that's not what this lawsuit is about. it's an election year, we believe, political tact that masquerades a defense of the constitutional principle of separation of powers. this is the wrong lawsuit because president obama had the authority to phase in the affordable care act. we are the wrong plaintiff because congress has not suffered an injury, and courts are the wrong forum to resolve the parties and political dispute between us because the founding fathers gave to the legislative branch the weapons to defend itself without running to the court. so we just commented on the fact

that we have certain powers of our own enabling us to guard against encroachment of executive power. in grade school we were taught that these were checks and balances and congress gets to write the laws, including the laws to say no money may be spent on this policy or that. congress gets to repeal laws and write laws and disapprove of rules and regulations issued by the executive branch. the members of the other body across the capital building have a chance to put nominees' feet to the fire before confirming or rejecting their nominations. we investigate, hold oversight hearings and sometimes impeach. these are some of the tools that we have as the majority used in your view exhausted these tools when it comes to the supposed objections to the implementation of the fast? >> i think -- i'm sorry. >> i wish we had a new microphone. >> we're all right.

i would say some of this money might go into new mike focrophm. just a suggestion. i think you're exactly right that chief justice renquist, justice roberts, scalia have all said repeatedly that there shouldn't be lawsuits brought by legislative members, legislative bodies when they have all the tools that you mentioned at their disposal, most particularly including the ability to write new laws if they want to take away -- if they want to in the area where prior presidents have thought in administering the law, they had the authority to delay the effective date of some provisions that were burdensome to american citizens or businesses. if congress wants to deny that authority or make it clear that it did not intend the president to have that authority, congress can do so by legislation.

and the fact that there simply is not the political will or the political judgment by two houses and the president to pass such legislation is not a problem for the courts to step in and resolve and effectively pass that legislation at the behest of one house and five members of the supreme court instead of the legislation passed by congress that would take away discretionary authority to extend any of the effective dates. >> i couldn't agree with you more because i think if we start relying on judges instead of the powers, the tools the constitution gives us, that is not just a -- as what we most worry about, turning it over to the executive, but we are simply giving the courts the ability to judge for us. so we're giving away our power to the courts. is that -- would you say that's correct? >> i think this would be a dramatic expansion of the power

of the courts if the courts got to decide, not the house and the senate, what ought to be the further articulation of the level of administrative discretion in carrying out these laws. and it is quite striking that the proponents of this lawsuit also acknowledge that if their theory were adopted, presidents could sue the congress. and i think that -- about how congress carries out its responsibilities. i think either of those would entrust with the unelected judges a power they ought not have in the american system. >> i think if we began to think about that as really a massive dumping of our power on to the court, giving away what the constitution has given to us, we weaken the constitution to such a great degree that it would hardly be relied on anymore. and mr. lazarus, we saw every single republican in congress

voted against the affordable care act. not a single vote for it. and then we saw the house -- the republican house vote to delay it or repeal it at least 50 times, said it was the worst piece of legislation in the history of the republic. they shut down the government to try to stop it. now they're trying to speed it up. at least that's the argument that was happening here, that the president failed to enact it fast enough after they had thrown every roadblock at their disposal in his way. is that a fair summary from your view point of what we've been doing here in the past years? and do you find any reason in that to sue the president of the united states? >> well -- >> or do you think that maybe congress has not done its job? >> well -- >> am i putting you on the spot? >> you are putting me on the spot, but i will certainly -- that's what i'm paid to deal

with. as i've said before, i think it is curious that the objection here is to putting some flexibility into the pace at which one part of the affordable care act is implemented from members who quite sincerely believe that the affordable care act has not -- is not a sound piece of legislation, although i strongly disagree with that. but it is a little bit curious. i guess i'd have to say in all sincerity that the propensity of members of the judiciary, including the supreme court, to view with skepticism the question whether they should take jurisdiction over such a lawsuit is likely to be enhanced by a perception that the last

thing in the world that some of the proponents of this lawsuit really want would be to see faithful execution of the affordable care act. be that as it may. so i guess that's an answer. >> every president since teddy roosevelt, almost every president since teddy roosevelt has tried to implement this kind of health care act. and we are the only industrial country in the world that does not have it. provide health care for our citizens. and president obama was successfully doing that. i think that has created somewhat of a backlash. but unless this suit's dismissed for lack of standing at the outset, wouldn't we see these lawsuits over and over? >> well, i think that is a big problem. and walter has already talked about that. but i thought i would respond. o mr. chairman worried quite appropriately about the lack of the limiting principle on the president's discretionary authority. there's a limiting principle issue here about this lawsuit.

if this lawsuit were to be accepted, wouldn't it be true that every time one house of congress thought the president was implementing some minor or not implementing some minor provision in a 5,000-page appropriatio appropriations omnibus bill that they popped into court, as justice scalia said, it would create a mess on a scale that it's hard for any of us to even think about. and i think that is a really important and obvious reason why you probably are going to get at least eight justices to say, no, we're not taking this case. >> mr. dellinger, do you believe we could see a possibility of the senate trying to sue the house? >> i don't see any limit to the principle that would be behind

this house suit. i could see that if we were to start down that road, the president could go into court and sue the senate for failing to give him an up or down answer on nominees as the constitution contemplates that they actually advise and consent or reject but give him a vote. i could imagine the house suing the senate because a certain bill the senate was considering didn't originate in the house as the chairman's session noted. the house has that authority over taxing and budget matters. so if the senate were considering a bill, would you go into federal district court and seek a mandamus to make the senate not proceed with a revenue measure that failed to originate? i just think these are not matters that the courts ought to be deciding. >> i often marvel at the foresight of the people who

wrote this constitution. it certainly stands today is what they were thinking at that point is what we need to follow today exactly. conservative writer andrew mccarthy says the consequences would be that now, quote, we would be subjects of a judicial oligarchy. all future presidents, no matter how lawful their actions, would be subject to congressional lawsuits and court directives from the judiciary. judges in charge of all policy matters in our body politic. and he goes on to rightfully point out that both parties would use this to harass presidents of the other party, which would be a terrible thing for our country and what i think is happening here. mr. dellinger, you've explained the system established by the constitution that the courts do not settle disputes between political branches, but you noted we certainly could have an american legal system and constitutional principles that allow our highest court, which would frighten me personally to death, to settle disputes

between the other branches of government. in fact, as you and others have explained, that's how they do it in europe, particularly in france. now, why do you suppose that the majority party wants to turn our legal system into the french system? it seems to us that our 200-plus years of what we've been doing has worked very well for us. >> you know, i do think that it has been very much a part of our system that our court is limited to resolving cases. in 1793 at the very beginning, r president washington asked the supreme court for its opinion on whether a given treaty was within the treaty power, and the justices responded in a very seminal opinion that we're not going to answer that question because there's not a lawsuit here. what the speaker is really asking is to have a right that ordinary american citizens don't have. they don't get to go into court if they disagree with something that's being done by the

government unless they're injured. they have to show they have an injury. they have to generally, with some exceptions, pay their own lawyers as well. what the speaker is getting is the right to go into court without showing any institutional injury. >> well, let me quote andrew mccarthy again. the conservative columnist i mentioned. he called this lawsuit feckless. >> feckless, was that the word? >> feckless, uh-huh. >> he's good with words. >> he's good. he writes that, we quote again, boehner would turn to the courts, notwithstanding that, a, the congress has its own constitutional weapons to rein in a lawless president, b, the judiciary has no power to issue advisory opinions about the president's behavior outside the context of an actual case or controversy, and c, the judiciary is not the president's superior, and d, the judiciary has no power to enforce its

judgments and would have to rely on the executive power to carry out its orders. for me, i think that sums that up very well. do you agree? >> i do, and i think we haven't even gotten into the fact that if this lawsuit were contrary to my expectations to make it to the supreme court, i'm not sure what the remedy would be since the period of the grace period would have largely expired, completely expired and the requirements would be in effect. i mean, i think what we have here is a lot of rhetoric about an uber presidency that doesn't fit with reality. congress' general capacity over funding the executive branch of the government gives congress lots of authority to rein in the president. presidents have used their statutory authority in very large ways.

the framers of the constitution came close to giving us a legislatively centered government. but in august of 1787 in a very dramatic period at the very end of the constitutional convention led by governor morris of pennsylvania, rufus king of new york, they gave the president independent authority. they gave the president for the first time the authority to negotiate treaties. they gave the president the power to nominate judges, which previously had been the purview of the senate in earlier drafts. they created an independent executive branch because they saw that this government was going to be entrusted with large responsibilities, and you needed a strong executive. that's what we've seen through washington and lincoln and roosevelt and others, that this country settled the west, we ended the great depression, we played a critical role in the second world war, we achieved the civil rights movement all under strong presidential leadership, always subject to the overriding authority of

congress, but that system, without judicial intervention, has served us awfully well for two centuries. that's a pretty good record of accomplishment. >> one last question. you all appear before the courts, certainly the supreme court. give me some idea of a timeline that you think that this process could take to its final conclusion. >> well, unless there were extreme expedition, this case would not get before the supreme court this term. this term that begins the first monday in october. so it would be before the court in the following term if the court thought this of any magnitude, a decision would likely not come down until june of 2016, by which time i assume it would have been dismissed at moot since the period allowing this is more time to accommodate to these requirements what already have passed. so i don't know what would happen. that's a sense in which i meant

that though the extensions may be important to the administration of the act, the particular legal question comes to so little for the first time to alter our history about the role of the courts. >> well, thank you very, very much. appreciate it. mr.

fiff a cans to come back i may ask questions then. >> without objection. i may ask questions then. >> without objection, the gentleman from lewisville, texas, may now be recognized. >> thank you, mr. chairman. i thank the gentleman from utah. i realize you just want the last word in all of this. i'm appreciative of what you have offered. first thing i wanted to do, mr. chairman, is offer for a point of clarification under the part d program in medicaid -- medicare, the prescription drug program. there was actually an amendment to 1860-d, the social security act, which gave the secretary authority to waive part d

enrollment penalties. if you stop and think about it for a moment, when secretary leavitt was facing the deadline for the enrollment of part d three months ahead of that, one of the worst biblical storms of all time washed ashore in the city of new orleans. i remember talking to the secretary in the city of dallas one dark afternoon when he declared a public health emergency from the people from new orleans who'd had to come to dallas. i said, gosh, mr. secretary, you may need more time now to do the implementation of part d. and he said, to his credit, we will get it done. but he did recognize there was also a statutory deadline that he faced, and it would require congressional action were he to do something different. don burwick, when he was head of the center for medicaid and medicare services had the aco rule.

he put the proposed rule out. it was pretty bad. undoubtedly, he was responding to a scathing editorial i wrote in "the hill" and amended the rule considerably and brought it back forward. i said, well, you're moving in the right direction, how many more chances do i have to get it right? he said, i have no more time by statute. this rule has to be delivered. i think it was a date in may. i offered to introduce legislation to give him more time, and he said that would not be necessary. now, i do want to make or put into the record committee reports from the energy and commerce committee and oversight investigation subcommittee from june of 2012. we did extensive work looking into the actual writing of the affordable care act. many people forget that it was actually written behind closed doors with special interests down at the white house. so when the question about ambiguity comes up, and i think

this question is for either mr. turley or mr. lazarus -- >> without objection, gentleman's statements will be entered into the record as he's asked. >> when the question of ambiguity comes up, how can the president claim ambiguity in the legislation when not only did he sign it, he defended it before the supreme court, and he actually wrote it down at the white house. so it just begs the question, where was the ambiguity in the law that the president thought that he had to delay the date of enforcement of the employer mandate? >> thank you, congressman. if you don't mind, i hate to turn my back to you. >> sure, i understand. i get it all the time. except for the chairman. >> it's an excellent question because i fail to see the ambiguity in the this law. when you look at what the president has done through these

unilateral orders, they're often justified on the basis of improving the act's enforcement. rather than the normal thing we see with agencies, it's not uncommon -- for example, the environmental field, when the epa is given a requirement to deal with point sources that the epa goes through a long process in defining what those point sources are, in rolling out the regulations, which can be very complicated in terms of the technical side. this was not one of those changes. in fact, most of these changes were the president saying, i'm going to extend this because people want it, i think it's a good idea. and that sounds a lot like a legislature. what my colleague mr. lazarus talked about with one of the changes -- i believe he's referring to in 1401, dealing with the state exchanges, he said that two district court judges had already dismissed those actions.

i'll simply, once again, note what's involved in 1401. it goes to this lack of ambiguity. under the law passed by this body, the ability to get tax credits was linked in 1401 to the establishment of state exchanges. so it says that you can get these tax credits, quote, through an exchange established by the state under 1311. now, i read that line, and i don't have a dog in this fight. i don't know what's the right answer. but i read that line, and there's no ambiguity in that line. and what the administration's argued is they would like to approach this with a more holistic interpretation that it was never intended to be that rigid. but the difference here when you look at those exchanges, and this is the same with some of

the others i've mentioned in my testimony, is not just some issue of delay of rollout. we're talking about billions of dollars that would be the difference. the same thing occurred when you look at 1502. that change was not just some change that deals with the annual penalties. an estimated $10 billion was moved with that change. so with respect to my colleagues, and i have a lot of respect for walter, when he says these are just normal changes in rollouts, i have to disagree. indeed, i told walter if he disagrees with me again, i'm just going to keep the mic. but we disagree in terms of the nature of those changes. i don't find those the type of agency changes we've seen. >> well, since -- >> oh, yes. >> i was also asked by congressman burgess. >> we think this mic is actually

working. with respect to the question of the availability of tax credits to enable moderate and low-income people to purchase health insurance on federally managed exchanges, professor turley, i have to point out that you say that one forward phrase is unambiguous. others have disagreed with that. but the important point is, as one of the district judges i was preferring to said, we have an obligation as judges to construe statutes, not individual, isolated provisions of those statutes standing in isolation. and when you look at other provisions of the affordable care act at its overall structure and its purpose as manifest in the actual text of the act, both judge spencer in

richmond, who as i said is a reagan appointee, and judge friedman here in the district, who is a very highly respected clinton appointee, who i'm sure professor turley knows well and respects well, both of them ruled that the overall text of the statute, its structure and purpose, mean that it unambiguously should be interpreted as the administration has interpreted it. so the idea at a minimum that this interpretation of the aca to make sure that health insurance is available to people across the nation that this interpretation should somehow be constitutional transgression by the president. that seems to me to be pretty far out. >> i don't want to forget mr. burgess' -- >> sure. >> professor, go ahead. >> you or you? >> i was just going to quickly follow up, if you don't mind.

>> go ahead. >> the decision on lower court, to simply note, we are waiting any day now for a ruling. which i've said and i think the panel would probably agree is a much more significant issue than hobby lobby ever was. it's a live torpedo in the water for the aca. and its impact could be huge. so we'll see what the court of appeals says about these differences. but i will also note that the supreme court just handed down two opinions dealing with the statutory interpretation of these issues and quite frankly, this is something as a law professor i'm very interested in and the principles of statutory interpretation. what was striking about the supreme court is it rejected the very type of holistic interpretive approach that is being advanced in cases like hallbig. i will simply note that in michigan versus bay mills indian

community, that opinion was written by justice kagan, and she said she would not engage in a demand, in that case by the state of michigan, to apply some holistic interpretation to change what is express language in a statute. >> if i could just mention, the supreme court case you cited is in addition to the supreme court's decision that came out in june. that was a situation where the administration had written what they called a tailoring rule in the context of carbon emissions under the clean air act. and what the court decided in uarg was, you know, you don't have the authority to write regulations that are directly contrary to unambiguous statutory language. when congress acts without ambiguity in a statute, the job of the executive is to faithfully execute that law. and that means abiding by whatever numbers or deadlines

congress provides in the statute. so congress in the clean air act, i think, mentioned 100 tons of emissions. and this carbon tailoring rule upped that to 100,000 tons. the supreme court said, you can't do that. by the way, not only uarg, but several lower courts, the ninth and tenth circuits, have said when congress specifies a statutory deadline, there's a per se rule that the executive must abide by those statutory deadlines. the only circuit i know that even deviates from that somewhat is the d.c. circuit, which has a track standard, a six-part test. but the second part of that six-part test is if congress has spoken, that provides the rule of reason by which the court is guided. >> well, i'm not going to extend these proceedings by going into an intricate discussion of the statutory interpretation debates in the supreme court this last term, but i will just point out that with all respect to both of you, i do think that you are

cherry picking what the court has said in its decisions. in the utility air regulatory group decision, for example, justice scalia emphasized what he called the fundamental cannon -- the fundamental cannon of statutory interpretation, that words in statutes must be interpreted in terms of their context and the overall structure of the statute, applying that approach, which is the approach the administration urged in the case that professor turley is talking about. i think the administration will succeed at all levels, as it has in the district courts. >> i want not to forget mr. burgess' question about ambiguity. what is the source of the ambiguity? obviously the administration had full capacity to influence the drafting of the affordable care act. so where is the ambiguity?

here's the ambiguity. like every major piece of legislation, the affordable care act has many provisions and many requirements, and congress put in what are the effective dates when those requirements go into effect. that's common with major statutes. it certainly means that before the effective date, no agency may impose a burden upon an individual or a business. but then, it also contemplates the legislation itself and the background of the administrative procedure act, contemplates exactly what happened. and developing the regulations, you meet with the affected business people. in this case, those with between 50 and 99 employees, relatively small businesses, and you have a process by which you try to implement all of the provisions of the act. so the issue is, is there

understood authority to say, well, we're not going to impose the new provisions on you beginning with the effective date. we're going to give you another year or two in order to get ready to be in compliance. now, the argument comes down to this. there are prior instances where other administrations have used this race to extend those periods. some people say that's a fairly thin group that doesn't establish a clear understanding that administrations have this power. others read those prior practices and say it does. but that does seem to me to be a garden variety issue that the administration's in power to resolve and which the congress, that is the entire congress, if it disagrees, can pass a new law and say, in this case, we want to resolve that by saying there is no administrative flexibility. you have to inflexibly impose these requirements on businesses.

that's what we intend to do. if congress can't bring itself to pass that, if the law making institution of both houses doesn't have the capacity to pass that, one house shouldn't, to use justice scalia's phrase, not mine, pop in, unquote, to the courts and ask the courts to do what congress itself has not been able or willing to do. >> well, i know i appreciate the argument. without restating the obvious, the effective date in section 1315, which is the employer mandate, effective date reads the amendment date made by this section shall apply to months beginning after december 31, 2013. that seems pretty straightforward. i'm just a simple country doctor, not a constitutional lawyer, but i do understand due dates. so it seems like this is -- let me just ask you this. this is purely hype thetic. i shouldn't even go here, but suppose, for example, on january

21st of 2017 right after ted cruz takes his hand off the bible and has promised to repeal every syllable of obamacare, but until he can get us to do that, he says, i am going to suspend the individual mandate. is that okay with him to do that? can he suspend that date just as the president did? >> you know, that's actually a very good question. i think one of the things that should inform one's judgment -- again, not the judgment of the court unless until someone is actually harmed by it and can bring a real lawsuit, what should inform the judgment is, is the president acting because he just disagrees as a matter of policy with the law that congress enacted? and that should lead us to think that we would be wary about that kind of delaying capacity if it's a policy disagreement. the president actually agrees with the act as a whole, of course, and the particular

provision that businesses should have insurance for their employees -- health insurance that meets these minimum standards and has these important preventive care standards. he agrees with that. it's not that he's trying to subvert the law that was enacted by congress and signed by the president. he's trying to facilitate his administration by working with business to make sure that this provision is implemented in a way that works for businesses, smooths the transition. that seems quite different from nullifying because of a policy disagreement. >> well, mr. dellinger, i feel obligated to point out that during the campaign of 2008 for the nomination, the president argued articulately against then-senator hillary clinton, against the mandate and against the employer mandate. he was not in favor of an employer mandate during the election process. but i guess, you know -- and this is just me. i'm not speaking for the energy

and commerce committee. i don't think the president will ever enforce the employer mandate. i say that because i watched with horror the chaos that was visited upon the individual market in november and december of this past year. bad enough that happened to 14% or 15% of the country. if you do it to 68% of the country, it will be an absolute revolt. so i think the administration now recognizes that, and they are quietly looking for a way to get out of the conundrum of the employer mandate. and this is just one step in that process. i'm sorry, mr. turley, you wanted to add something. >> only that i wanted to respond to walter. i'm afraid i still get lost in the weeds. also, i think this goes to something simon said. first of all, when you talk about, well, there might be a different case where the president is simply disagreeing with a policy, and i believe that simon said earlier, it might be a different case if a president was acting intentionally as opposed to in

good faith. what that suggests is somehow the motivation of the president is going to dictate whether this body has separation of powers, an ability to seek review. you know, the framers warned us over and over again that we cannot have a system of government that depends on the motivations of people. that was madison's famous warning, that if all men were angels, no government would be needed. we have a system of government that doesn't depend on the motivations of our leaders. and when walter says, look, this is a lot like just, you know, a law where troopers decide they're not going to hand out tickets for a month to give people a chance to get used to it, i don't think that analogy is correct. this law is more like prohibiting a car and the trooper saying, i'm going to let an illegal vehicle remain on the highway. because once again, this is not just a deadline. this body fought tooth and nail over issues like the deadlines,

but the deadline itself is not a date on a calendar. it was the date upon which certain policies would become unlawful. this body said at that date, you can't sell certain policies. and when walter says, well, you know, this is still just sort of tweaking, you take a look at the hardship provision. the law is very clear about what constitutes a hardship. i believe there's an 8% issue there in terms of affordability of -- in terms of hardship. the administration responded by expanding the hardship provision. now, once again, i happen to think that was a good idea. but it was not congress' idea. it's not in the law. the change is a massive one in terms of who can essentially get out of the aca. these are not roll-out changes. in reference to these other cases. this is major changes of your

work. and i believe there are separation problems there. >> let me respond, jonathan, that in none of these cases do i think that the house has standing. i was responding to mr. burgess by saying that when we judge as citizens or when you're thinking of reacting to congress to the propriety of a president's decision, the fact that it's not a disagreement with the policies, it truly is a matter of a transition period. that affects how we assess it as citizens or you as legislators. but in none of those cases do i think that the house of representatives as sitting today has the kind of injury to go into court and ask the courts to adjudicate that in any of the cases. i just wanted to clarify that point. >> where i have problems, walter, and i don't mean this to become a conversation. maybe we should just go to a bar. but where i have problems, walter, is that you and simon refer to these standing cases as if it is clear on legislative

senate. i agree with you there are hostile opinions here, particularly in the d.c. circuit. god knows i was the guy that was run over by one of those decisions. when we went in the kucinich case, we came back and got hit pretty hard with campbell. so those decisions exist. but certain things, i think, should be clear. the supreme court has never, never closed the door to legislative standing. indeed, members of congress have been recognized as having standing and not just in subpoena cases, just recently the supreme court accepted the standing of blag. now, i'm willing to certainly say -- >> you know where i'm coming with that. >> so i will say -- there's a real problem of giving him his own mic. i object to that. i will say that in windsor, there are unique circumstances of question of abandonment by the administration. you have to consider that with

that caveat. but in coleman, you had nullification arguments that prevailed. and we have had the recognition of members in different capacities. i'm not saying that this is going to be an easy fight. i think congress has it on the merits. i think the president has the advantage on standing. but the outcome in this case in the long run, i don't think you can honestly say that this case is doomed to failure. at the district court level, they're going to have a real hard time. if they win at the district court level, that would be quite an accomplishment. but this field has been turned into a bloody mess by the supreme court. and it is not clear -- i've been looking at this for a long time as an academic and lit gator. i do not see the clarity. >> mr. chairman, i would just conclude by observing the best way to end the bad law is to enforce it strictly. in the words of abraham lincoln. and i appreciate the time. i appreciate the panel. i'll yield back. >> gentleman yields back his time. gentleman from massachusetts is recognized. >> thank you, mr. chairman.

you know, i'm not a constitutional scholar. i'm not a lawyer. this has been a very fascinating discussion. but i think we ought to be straight about why we're here today. this has nothing to do with constitutional law. it has everything to do with politics. you know, a couple of weeks ago when the speaker was talking about suing the president, there were 100 different subjects on the table. everything from sergeant bergdahl to immigration and whatever somebody got in a room and decided they were going to focus in on a piece of the affordable care act. quite frankly, it doesn't matter if all of you agreed that suing the president was a bad idea. they're going to do it any way. and i really do think this is a sad, sad day in the people's house. we all know why we're here. we're here because my republican friends do not like barack obama. it's that simple. they don't like the fact that he was elected twice by the american people. they don't like the fact that he's more popular than they are. and they really, really, really don't like the fact that the

affordable care act is actually working. and mr. charchs i'd like to ask unanimous consent to insert in the record a report by the senate on american progress, which says that the rate of americans without insurance dropped by 3.7 points between the fourth quarter of 2013 and the second quarter of 2014 from 17.1% to 13.4%. >> without objection, that'll be entered into the record. >> we have seen subpoena after subpoena after subpoena, witch hunt after witch hunt, investigation after investigation, pointless vote after pointless vote, a whole lot of sound and fury signifying nothing. and this so-called lawsuit before us today is more of the same. another cheap political stunt. actually, let me correct myself. we don't know if it will be cheap or not. we have no idea how much this will cost the taxpayers. and it's not like there aren't real serious problems that we need to deal with. we have an ongoing humanitarian crisis on our southern border and a fundamentally broken

immigration system. and we have a house of representatives that refuses to bring up comprehensive immigration reform. we have an infrastructure system that is in desperate need of long-term funding, and we can't seem to straighten that out. we're at war, mr. chairman. we are at war. and i would remind my colleagues once again that during the most recent defense authorization bill, i had a five-partisan thoughtful amendment that you refused to allow in order. you refused to give me the courtesy of ten minutes of debate on an up or down vote. but we have the time for this nonsense. a lawsuit. if i were president obama, i would countersue the house leadership for its gross incompetence. the american people should sue the house of leadership for emotional pain and suffering. i want to thank our witnesses for being here, and i'm sorry that they're being asked to spend their valuable time on this. you have been brought here, i think, under false pretenses. you have been brought here under the pretense this is somehow all

on the level. let me assure you, it is not on the level. and so, you know, i have a few questions, but i think it's important that we all understand the context in which this is being brought before us. this is politics. pure and simple. this is not about constitutional law. and i regret very much that we're doing this here. let me ask a question. ms. foley, i was reading "the new york times" today. says earlier this year -- this is a story that appeared today. earlier this year, elizabeth price foley seemed to anticipate the narrow focus of the lawsuit by the house speaker john a. boehner against the president which zeros in on the white house's delay in enforcing the health care law's mandate. such benevolent suspensions, in quotes, of law enforcement are tricky, she wrote on the conservative daily caller

website. since no one is really hurt by them and as such no one has legal standing to sue. when a president delays or exempts people from a law, so-called benevolent suspensions, who has the standing to sue him, she wrote. generally no one. they don't by definition create a sufficient concrete injury for standing. that's why when president obama delayed various provisions of obamacare, the employer mandate and annual out of pocket caps, the prohibition on the sale of substandard policies, his actions cannot be challenged in court. i don't know whether you want to -- >> oh, absolutely. it's interesting. you can take a lot of things out of context. let me say that article was written, i believe, in early february, around january. >> which article? your article? >> yeah, the daily caller. and that was an article that the focus of it, if you read the whole article, was, what happens if congress can't check the president?

and i said, look, you know, if they can't sue, if they can't impea impeach, if they can't remedy the problem by appropriations, we have a major problem of the breakdown of constitutional architecture and the loss of separation of powers. i would just ask that perhaps you look at my politico article that was actually written three weeks before that daily caller article. it was written with my colleague. and in that politico article, we make it clear that we think congress would have standing to sue, and we set forth our test. of course, i testified that before this committee as well as the judiciary committee. and if i may make an additional point, to the extent that members of congress believe that this is some sort of political stunt, i hear that often. the president himself has articulated that. i went and did a little original research on the legislative standing cases that have been brought since coleman versus miller decided in 1939 by the supreme court. and what i found was that there

were 44 total cases where legislators had tried to bring suit and gain institutional injury standing. out of those 44 cases, 41 of them had known or identifiable political affiliation of the legislator plaintiffs. and in 68% of those cases, the plaintiffs were democrats. and 32% of the cases, they were republicans. so i guess my response would be, i assume that democrats who try to bring institutional injury lawsuits against the executive branch were also acting political when they made this attempt. by the way, just fyi, congressman slaughter herself was a legislator plaintiff in a lawsuit against president bush, was brought by on the name of congressman conyers in 2005 challenging the constitutionality of the deficit reduction act. >> let me just say, i restate that this is a political stunt given the fact that a couple weeks ago no one knew what they

were going to sue about and they focused in on this. secondly, all i'm asking -- i'm just trying to figure out the discrepancies here. i read your footnote. you said the title of your article was that you didn't write it. i went back to your article that you wrote. you said congress probably can't sue the president either. the supreme court is severely restricted so-called congressional standing creating a presumption to sue the president merely because he fails to faithfully execute its laws. look, so obviously -- i just have a little whiplash trying to follow all the different interpretation here. i realize you wrote multiple articles and maybe some of your views have changed, but i do -- >> my views have not changed. >> i'd like to ask unanimous consent these be put into the record, mr. speaker. you know, i'm still trying to figure out the whole point of all this. maybe mr. lazarus, mr. dellinger, help me.