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. the suit we're talking about

here, we're not suing the president because he lied about weapons of mass destruction and brought us into a war where thousands of americans were killed and almost bankrupted our treasury. we're not suing because of some sort of deal to exchange arms for hostages. we're focused in on a narrow provision of the affordable care act, i guess, because we haven't seen the exact lawsuit they're going to file. i'm just trying to figure out, if everything goes the way they want it to then they get a judge to hear it and it gets all the approvals they want, what is success? what is the end of all this? what do they get? someone explain to me what happens if they win. >> as i said earlier, mr. mcgovern, any victory was likely to come before the grace period had expired for business in any event, but -- sorry, after the grace period ended.

thank you. but in a larger sense, the theory of standing here, that there's an institutional injury in one house of the congress. if an executive administration in administering the law does so in a way they disagree with, that happens every day. no matter which party is in control of the congress and which party is in control of the executive branch, it is always the case that there is a disagreement about whether the way in which administration is implementing the law is consistent with what congress, in fact, intended. so it would be, i think, a line of members of congress between here and across the way to the supreme court or to the -- down the street to the federal district court, i suppose, to file a lawsuit saying their votes have been nullified because the president was administering a law in a manner with which they disagree is the

interpretation. given the number of those disagreements and the relative insignificance of the particular matter -- it's not war and peace. whether a business has more time to comply with getting those insurance policies together. given the relative insignificance, i see no limit to the number of matters which members of congress couldn't troop down and say or one house of the congress or a committee of the congress that their votes are being nullified. >> mr. dellinger, we've heard that if a court let this lawsuit proceed, it would go against all the precedents. in other words, it would make new law and go against what statute and the supreme court have said. wouldn't you call that judicial activism? >> that's a term i hesitate to use, but it certainly would be an aggrandizement of the role of the judiciary if they would take

on hearing such lawsuits as this. >> now, and i raise that because i constantly hear from my friends on the other side their complaints about judicial activism. this seems to take this kind of to a whole new level. you know, mr. lazarus, i don't know if you remember, but last year -- and mr. chairman, if i'm quoting you out of context, please let me know. mr. sessions said something i thought quite revealing. he said, quote, everything we do in this body should be about messaging to win back the senate. and that's really what this lawsuit is about. i mean -- and the reason why i'm asking this, because i think the american people are wondering, what are we doing here? this is not a suit over, you know, whether or not congress should approve, you know, an action to go to war. i think people are trying to understand. we're going to invest millions of dollars in the lawsuit here,

and what's the point? does this -- in your opinion, does this lawsuit have any chance of actually succeeding in court? >> well, i think we've both -- walter and i have talked about the difficulties that, indeed, our co-witnesses have also acknowledged. the challenges in terms of the state of precedent and the hostility of what appears to be a majority of the justices to entertaining cases like this. so so there's no question that it's an uphill climb. no one would ever say never. but i think both walter and i feel it would be very bad to change the law to make it possible for this suit to go forward. we may disagree about that but i think everyone agrees that it's an uphill climb. >> and mr. dellinger and

lazarus, you've been around the federal government, have served in high-profile situations and have dealt with congress a fair time. have you ever seen things this bad before? >> well, i first came up here from north carolina working literally for peanuts for a north carolina congressman for a member of congress. the atmosphere was much different then. that would have been the summer of 1962. and one of the things that i think has happened is back then there was a big ideological overlap between the parties. there were 50 or 60 democrats who were more conservatives that 50 or 60 republicans and vice versa. and so you kept switching teams all the time. it would take a coalition of liberal republicans and

democrats to pass the civil rights bill. it would take conservative democrats to pass some other kinds of legislation. other times you would switch teams and you'd have to want to keep your chairmanship so you'd work together to that end. so people kept switching teams depending on where they were at. my job was to be the bartender and we had as many republicans as democrats ranking at frank thompson's bar and i think the amount of drinking has gone down considerably since i was an intern here, which is good. but i think the amount of camaraderie has decreased. this committee is known for the fact that it treats everyone with great courtesy and whoever is in the majority, i think this committee has a particularly good reputation for how it conducts its business. but as a general matter, it's so much different in washington than i -- over the many years

that i've observed this division and the parties in terms of the war of against all is certainly regrettable. >> anyone else want to comment? >> i'll certainly agree with walter about what's happened and to this institution. i came to this institution as a 15-year-old page and stayed as a house leadership page and i am not too sure what happened to congress along the way where we went from disagreements to despising each other but i think that's a reflection, also, of what is happening in the public. i think the key to getting over that is recognizing that both sides speak from positions of good faith. i have a huge amount of respect for simon and walter and their intellects and they have points that i think are certainly worthy to consider. i disagree with many of the things that they've stated, but i do think that they have well

reason -- good reason to stating it. i also want to thank this committee. it is a pleasure to be in a committee where people really do deal with each other with decently and respect and that's the reputation of this committee. and as someone who testifies a lot, it's a great pleasure to be at said place. >> i appreciate that and let me vent a little bit more. i really am frustrated with this. there are so many things that need to be done and we're operating in a congress that we don't get to vote on things anymore. we don't get to debate things anymore. and it is really frustrating. and, you know, when we talk about bipartisanship, this resolution is not a bipartisan project. in terms of consultation. this is not an example of where people come together and talk to each other about taking serious action. i remember during the whole watergate thing, democrats,

republicans did talk very seriously about whether to bring articles of impeachment against richard nixon. there was consultation. there is not here. that's why i began the way i did. i really do believe this is pure politics. this is red meat for the base. maybe this is damage control for speaker boehner to try and keep in check the people who want to move to impeachment. i have no idea. but this whole effort was not born, in my opinion, out of a legitimate process. and i regret that very much because i think it further erodes public confidence in this institution. and like i said, even if you all agreed that this was a bad idea, there would still be a lawsuit. a couple of weeks ago we didn't even know what the lawsuit was going to be about. some people thought immigration, some people thought the bergdahl case. and then out of the blue we're focusing on this, which, you know, kind of fits with what their agenda is. so i respect each and every one

of you and i appreciate the time that you have taken to be here today. but, you know, something's got to change in this institution because this is the kind of stuff that i think destroys this institution. and i started here as an intern in the 1970s for george mcgovern. no relation. people said they were big supporters of my dad and my dad owns a liquor store and to keep supporting him. but i remember, you know, mcgovern and dole working on nutrition programs together. the former chairman of this committee, when tip o'neil was here, great calm rmaraderie and don't think they'd ever let it get to this point. chairman yields back his time.

>> thank you, mr. chairman. i'd be happy -- not all of the old congress framnkly, we don't very often see this -- while i have a predisposition, i haven't made a final judgment in this case and i find myself going back and forth, quite frankly and you've made your point since serially so i appreciate what all of you have brought to the table in that regard. and i have to say, as a sort of upfront assumption as a conservative, i hate going to court. i consider it the equivalent of going to war. it's unpredictable and it's expensive. so i don't like doing it and have never taken anybody to

court in my life and have never taken anybody to court in my life. i take this not as a partisan exercise but something that is pretty serious thing for us to consider here. and it's interesting to me here that four people of your distinguished background are on different sides of the issue effectively. so it tells me there's a real question here. it doesn't tell me we should go to court but it does tell me there's a lot more intellectual credibility than partisans on each side might allow. let me begin with you, mr. dellinger, if i may. if i remember correctly, you made the point that perhaps the 113th congress wouldn't have this standing to deal with a problem, a law passed by the 111th. if that's the case, you know, if the 111th passed the law that was going to be phased in over a period of time that would

outlast its own existence, that means that future congress would have effectively given up all right to go to court on this particular issue or any particular issue? >> well, that's a good question. i don't think they would have given up the right because i don't think they had the right to begin with and my point about the 111th and the 113th house, a house of the 113th house to go to court is simply, more than anything, a rhetorical way of emphasizing the point that chief justice rehnquist has made, chief scalia has made. that is, when the legislation is passed, your job is done. your job is done. so even if this were fast enough, like the house of the 111th congress could have gotten in court, when the legislation is passed, your job is done in

terms and how it is you have no legal interest different than the american citizenry in how that legislation is implemented. all of us care about it. but the only people who get to sue are those who are adversely affected and can bring a lawsuit and that doesn't include the members of the house whose job was done when the bill was passed. >> okay. i want to move -- because i have questions for all of you in limited time. the chairman has been very generous. and if i remember correctly, mr. lazarus, you made the point that this is -- you know, you can extend the law or normal delays and normal implementation. how many delays? when we talk about the businessman date, we're talking about two delays, not one. and we don't have any certainty, quite frankly, that will happen the next time.

so is there some number of times that they can do this? remember when they delayed it the first time, they said we'll delay it by this date and then they delayed it again. where does it end that the executive branch can what is written in statute to say to effectively implement we've got to stretch it this far and then this far again. is there a number of times that they get to do this? >> that's a good and tough question. it's so tough that i decided not to use the mike. that's a good and a tough question. what the law provides, what the administrative procedure act provides is that a court can compel an agency to take action of the delay taking when it's been unreasonably delayed. unreasonable is not a precise term but i don't know how it can be written in any other manner. it depends on what the circumstances are. and as i indicated, there have

been times when courts have told agencies it's now time to get your act together and do this. those cases have been rare and involve much longer delays than the current one and they involve powerful evidence that the agency is not merely trying to force a law in, it's not trying to enforce it at all. as i said, and as professor turley noted, there have been cases of administration sitting on their hands and not carrying outlaws and that clearly is illegal and unconstitutional. it's another question whether how to deal with that and the courts have trouble dealing with it. congress is really the place to deal with that. but congress, what they should do, what congress should do is what congress did in the case that congressman burgess referred to, and that is pass a new law or use other powerful

sources of leverage that congress has. >> so we could only act legally if both houses were controlled by the same party and largely in agreement. i mean, that effectively disenfranchises either from acting independently. >> well, i don't think that is right. of course, i share the experience that walter had with congress' past, we're both pretty grown up as that were. and often we've had congresses that different houses were in the hands of the other party but were still able to work together and make legislation happen. so i don't think it's beyond the power of the congress to do that. >> let me move to miss foley and you may want to comment on a couple of things but there is one in particular that i want you to address. because we sort of had this discussion, it seems to me, do we have to use every single

weapon before it's available? that is, are we required to cut off funding even though we may have a lot of collateral damage? are we required to impeach even though we can impeach and then not convict? i don't like going to court but it seems that there's an undertone here that at least in the minority position that we should never go to court until everything else possible has been done. that's sometimes not the proven thing to do. it's paralyzing the country in an impeachment debate and it may not rise to that level. we're not talking about high crimes and misdemeanors. we're talking about a fundamental disagreement about the appropriate roles of the branches. >> you know, i think that's right. as i stated in my opening statement, i think a lawsuit -- although it's not something congress should rush into -- if it's perfectly tailored and provides a clear limiting

principle for the court to adjudicate, a lawsuit may be the most proportionate, most appropriate, tailored response to a failure to faithfully execute the law. think about what is going on here. what you want is congress to faithfully execute the law. that's as clear as a bell. it's unambiguous. what are you supposed to do, to pass a law and say we didn't mean it this time? that doesn't make sense. are you supposed to impeach the president when actually you don't think the president should be removed from office? maybe you think that the president should enact the law. this is a less drastic remedy. what are you supposed to do with appropriations? are you supposed to cut off appropriations for an unrelated program that you otherwise support because the president is failing to execute the

affordable care act? do you cut school programs, medicare, social security? and if you do that, if you cut a program that sis unrelated to te president's failure to execute, you go back home and they say, why did you cut the school lunch program, they don't understand that. when you point the finger to the president, the president will point the finger back at you and say i didn't cut the school lunch programs, congress cut the school lunch programs. what we have is a deficit of political accountability to our legal geeks. the supreme court has made it clear in its separation of power, that the reason that we have both vertical federalism and horizontal separation of powers is to that when somebody does something bad to the american people, the american people can know whose responsible for the harm that

they are suffering. and i think in this instance you wouldn't have that if you cut off appropriations. a lawsuit is the most tailored, conservative way to execute a failure error. >> let me ask you -- the administration made a decision to delay. our friends on the other side have made the point on several occasions and actually the decision that we agree with in some ways. then we said if you do that, you also ought to delay this, the individual mandate. do them both. we'll pass separate pieces of legislation but don't subject one part of the american people while you exempt another part, particularly when you're subjecting -- exempting almost everybody that is in a business. but if you're not, you're going to take it. we don't think that's

fundamentally fair. but we're willing to work with you on this. come back a year and maybe everything will be ready to go. it's not as if congress didn't try to work with the president. it's not as if we didn't offer an alternative. i have a authority to do it here and i don't have to do it there. i mean, that to me suggests that it's grounds for a lawsuit. we disagree. we don't think you have the authority to do both of them on your own, let alone pick and choose which ones you're going to do. we're willing to say, you think we have a problem here, let's sit down and acknowledge that. so i don't know if that impacts the lawsuit directly but it does suggest to me that we have an executive branch that won't work with the legislative branch in this area that was willing on this topic at least to work with them. >> well, i think what you're looking at should result in one clear conclusion and that is doing nothing for this body is

not an option. we may disagree about this but this branch is being drained of authority and it's becoming -- the legislation is coming out of this branch is increasingly being treated as discretionary by the president, being changed by federal agencies. i certainly agree with elizabeth that you do not have to keep oncoming back and saying, we really, really mean something. i also do not agree with the analysis that something only becomes unconstitutional if you have no other options. we would say that about a free speech violation. you wouldn't have a court saying i know the government is restricting your speech but maybe you can tailor your speech. we don't do that. we look at the violation. where i really disagree with my friends at the other end of the table is this notion that you don't want to do this because you're going to introduce tyranny of the court, somehow

you're going to unleash judicial activist. i have to say that i don't see that at all as a threat. this is a separations question. what the court will be ruling on is who has the authority to act and that who does not include the courts. so you're not going to have a court come in and say, you know what, i actually think we should tweak this deadline and make it a six-month delay. in a separations case, the court is deciding between the other two branches as where that line of separation is. and where i'm left confused is why that seems to be of such greater risk than where we are now. i can't believe that anyone would want to stay where we are now. i mean, right now you have a major piece of legislation that millions of people are counting on that involves the largest segment of our economy and it is fraught with questions of legitimacy of what's the right

rule, what rules should we live by because the courts have removed themselves from this court function. the most important thing they do is to mind the line of separation. when that line is clear -- and i'm not sure why we don't want clarity -- then the branches know how to interact. i believe much of the dysfunctional politics that we've seen today and the fact that the court have removed itself, you have to play this game of chicken every single session. what clarity brings it allows you to know how you can relate and how you cannot relate. and then finally when walter says, look, are you going to let every member of congress sue? first of all, we're talking about an institutional lawsuit but it's just over 500 members of congress. that's not what we talk about with flood gates. we're not going to have a huge amount of flood gates. if members go to congress individually for frivolous lawsuits, the lawsuits are

dismissed. we have that happen all the time. judges do that all the time. it's not going to shut down the system. but if the courts get back into the business of minding the line of separation, we may get something done because then we'll know the rules of the game. >> may i respond? may i respond? first of all, if the unprecedented step is taken of allowing the house to claim an injury and how the administration is interpreting and applying a legal provision and bring that to court, the issue will not be like some theoretical separation of powers issue. it will always be a matter where the courts have got to decide, is this the right administrative rule or not. now, let me make this clear. both the courts and congress have ample authority to rein in the president. both courts of congress. what congress has to do -- it doesn't have to say we really mean it.

the point made great headway, i can tell, with representative fox. i'll want to respond to it. that's not what you would pass. you would pass a law saying there should be no administrative flexibility in compliance with the new standards for health insurance policy. when that issue is up to debate, given the prior history that mr. lazarus posed of having transitional periods. also, courts do get to rein in the executive branch whenever a citizen is burdened. the courts are there and they do act and they do review. what the president does. this is a case where you don't have an injured citizen that they are pausing. i can tell you there is a strong libertarian conservative streak. they were not bothered by this as a great problem that required the courts to take on a new role. that is, if the government is

not burdening businesses or citizens. if they are not burdening their citizens, how could there be a lawsuit? the house has some injury. and under enforcement of the law it's not a great problem where you needed to create something like the house having a, quote, personal injury, unquote, and having a different kind of lawsuit that we've experienced in the past. >> may i respond to that just for a moment? >> certainly. >> because it's directly on point. if you take walter's argument to its logical extreme, what that would mean is that the president suddenly has a new power, not enumerated anywhere in the constitution, to delay at infinitum, he can cherry pick any portion of a law that he doesn't like, he can simply wave

waive, delay, suspend and there's no private plaintiff available by definition under this circumstance and then, oh, well, i guess that's the way it goes. our constitutional house of cards has to fall down. >> i'm not saying that it will be unlawful oregon any more than where the disagreement comes and the commander in chief that the proper response of the press would be to file a lawsuit in federal district court. i think that's not the system that we have, that it would be improper for the president to do what you suggest and if there are plenty of remedies that the president of the united states has and the people -- i mean, one remedy would be great if the

people in regular intervales could vote people out and we have an ample authority in congress. the fact that congress is not willing to take away the flexibility that the president and the department of the treasury and all of us would like to have in the implementation of this law does not mean that one house of congress does not get to go into court to do what the whole congress is unable to do. >> i have a question and if you want to respond in the context of the question, please feel free because it was actually to you. and it's this concept that our work is done at the end of a congress. you know, that we sort of delivered the baby to the world and what happens to it from here on out is not our concern, somebody else has to take care of it, we have no interest of what happens to it, we're just sort of out of this process.

you know, that strikes me as an odd way to look at passing laws. we have an ongoing -- i would actually argue the majority has a tremendous interest in how it is. but so do the people who opposed it. we continue to have an interest. so i'm curious about your thoughts, professor foley, on that. >> i mean, i certainly think congress, just like article 2, has continuing interests in preserving its constitutional prerogative. same thing if one president took an action and then congress tries to defend that action, continue to defend ithe administration has changed, i don't think that makes a difference because what they are trying to preserve in that instance is article 2. it's the executive power under the constitution. the same thing with future congresses. so, yeah, of course you have institutional interests that can be impaired to create standing. that's the holding of the supreme state in coleman. that's the holding of all of the

subpoena cases. and by the way, i mean, this idea -- the whole problem with a failure to faithfully execute the laws, when the president assumes this new power to sort of waive, suspend, delay laws unilaterally, he's delaying political pain. he's making the law easier on people. in fact, when the president in this instance delayed for the second time the employer mandate, he didn't even try to argue that it was because the employers might have a difficult time complying. he argued publicly, or he stated publicly, that he was doing it because at the suggestion of seven democratic senators who are facing tough election battles. and i would just suggest to you that that tells you that something is wrong with the system, where the president can delay the law in that fashion. what he's doing is he's delaying the pain of letting law go into effect the way it was written.

that creates a major distortion of political accountability and a distortion of our democracy itself and i think that's an injury that we ought to be able to go to the courts and -- >> please. >> i just want to add one other dimension to something that walter said. it seems to me that we're talking past each other, largely based on our disagreement with one no one. walter keeps referring to injury and he views injury in a very personal injury sense. and it occurs to me that that is perhaps the point of departure in terms of our view of the standing issue. i respectfully think that walter is being too narrow. if you look at the cases, there are various forms of injury that have been recognized for standing. if you look at, for example, judge bates' decision in the

myers' case, he said i'm looking for an institutional injury. he was actually talking about reins. in powell you had a member of congress that was actually coming forward and he was personally agrieved because he had been excluded from congress and that was viewed as an injury and you have in subpoena case as different type of injury which is an institutional injury. in coleman, you had 21 out of 40 kansas legislators who had recognized standing because they had an institutional sfatanding. this is part of the confusion that we see in this area. because there is a lack of clarity. but my point is only that i believe those other forms of injury are not being manifested of walter's analysis. >> again, you've been very generous, mr. chairman. i don't want to overstay my welcome. i appreciate your testimony.

it's been very helpful. thank you. >> thank you very much, chairman cole. >> thank you very much, chairman. and i heartily endorse all of the endorsements regarding the witnesses and their preparation. mr. chairman, before i get to the witnesses, i raised an issue with you yesterday and i apologize to the witnesses. i'll come back with questions and my opportunity to make a statement. but i asked you yesterday at the rules committee about the likely cost for this matter. and mr. brady had written to the chair lady on the house administration a request regarding a similar response i

offer not just for a letter by unanimous consent in response on july 15th to mr. brady. it says, "i write in response to your july 14th letter to the speaker of the house of representatives expressing concerns about the draft resolution to initiate a lawsuit against the president. as always, the committee and republicans will be open and transparent about the use of taxpayer money. i will, however, note there's no higher use of taxpayer funds than protecting and defending the united states constitution, which both you and i took an oath to uphold and defend. all appropriate and applicable procurement procedures will be followed in the award of any contract filed for outside counsel for a lawsuit. regardless of your partisan political feelings on the lawsuit, i'm sure that you would agree that the united states house of representatives as an

institution deserves full and zealous advocacy in defense of its prerogative as a co-equal branch of our government and in defense of the constitution." that's miss miller's letter and i offer it and offer unanimous consent that it be included and i have further -- >> it will be admitted into the record. >> thank you very much, mr. chairman. >> yes. >> in the house legislative protocols of the 113th congress, this protocol is designed to improve transparency and accountability and the authorization of discretionary programs and identifies the protocol. any bill or joint resolution authorizing discretionary appropriations shall specify the amount of funds being authorized. authorization should not utilize such funds necessary, unquote,

and some of the language used to specify the actual amount. i understand that you not are particularly violating this rule and clearly you are violating the spirit of the rule and we don't have any idea and i didn't ask for idle reasons and what becomes a blank check and we see a pattern of behavior. i don't want to go into all of the things but all of us know how much money has been wasted on a number of undertakings and that was my reason for asking in the first place what did we anticipate and i would say that as a lawyer i would be chomping at the bit to have an opportunity to be the lawyer or firm or lawyers that are involved and i predicted for you that whenever they are, if we

get into the running out of the clock or the time, lawyers all find additional way. i've been involved in a lot of litigation in my life to run up the bill so i don't think it's satisfactory and i don't require you, mr. chairman, to be mindful of what the speaker or mr. miller may do but i ask you to follow your own protocol. i'll move on with that in the record. i'd like to begin with a professor dellinger. it's such an honor for me to be

here. i don't know miss foley. this is my first time hearing her make an argument and there's irony there. and the history that was impeached and the other witnesses that had substantial comments to make or during that period of time and i find it a great irony that i have such an opportunity and privilege to and i might add, even those difficult times, i have great respect for and still do and you raise a question, professor dellinger and professor turley spoke to. i'd like to amplify, you argue rains and you've been an acting

solicitor general and many of you, certainly professor turley has been before the supreme court before but from an institutional standpoint, it remains clear that if the standard is supposed to be applied to an institutional plaintiff for serving an institutional injury outside and i just discount all of what miss foley said about subpoena enforcement and i think as it pertains to standing or nor is it an analogy. there is ample case law and i could go on and on if i want. tell me what your thought is regarding that vote null if i indication. >> well, to me the rules are

basically clear. there is standing when you show an injury that would sort of nullify your ability to carry out legislative duties. so, for example, the subpoena power is about carrying out duties and no one should doubt that. coleman against miller in 1939, the cans stas legislature was deciding whether to ratify the child labor amendment and the kansas senate with 40 members split 40/40 and the 40 who oppose -- the 20 who oppose ratification thought it has failed. and the lieutenant government cast a deciding vote but it's not part of the legislator, not part of the legislature. and on that basis they sued. they said their votes actually succeeded in rejecting the

amount if they are right as a member of constitutional law. that, to me, and the supreme court makes it clear in rains against bird that that is confined to a situation that they went out of their way to diminish it. it was in state court. state court had already ruled on it and it did involve the internal operation of the legislature and what counts for a bill actually passing, or in this case, actually passing or not passing the legislature. that's quite different from asking the court to determine at the behest of congress, asking the court to determine whether an administration is actually properly executing the law. >> i appreciate that. mr. chairman, i forgot to ask upon a personal privilege.

we've done this before but two of my interns proved to me that there's still hope here for all of us, tom kerns and anastasia dixon, one is a lawyer and the other one thinks one day she'll be a lawyer and i'll try to dissuade her but -- as i did my daughter, professor turley tried to dissuade her and wasn't successful. >> good thing you failed. >> she told me she got a "b" so she must have done pretty damn good. but i'm confused by this notion that no one is hurt and then congress can sue. so professor dellinger, is there any precedent for this and i take into consideration, if allowed, permitted to have the professor from fyu respond.

i don't know what a benevolance suspension is. i understand we have to be creative in many respects. but does -- is there any precedent for changing the standing requirement of an actual injury? >> i think it's a creative way of saying that we know. i actually don't know why an employee would have standing to bring such an action. but that's another matter because it doesn't matter if they don't. if nobody brings a lawsuit because there's nobody with an injury, that's not a vice. that just keeps a court out of a business where there's no, you know, point, no person who is injuried and no injury to redress. that's not a vice of the system. that, in my mind, is a virtue of the system. >> right. now, you have argued a lot about standing and certainly professor

turley has and i don't know whether miss cole has had that privilege of the upper range court and the u.s. supreme court. but certainly mr. lazarus has written extensively about it. how long have you held your view regarding standing? >> as long as i can remember, i have been a hawk on standing. i don't know quite where that conservative streak came from. i think i've always argued it was wrongly decided when funds are provided to a religious institution, there's no lawsuit and the court, in cases like that say, we have to proclaim the constitution because there's nobody injured and there's no lawsuit and we have to pretend that there is. i have consistently done that. i have filed a brief to the solicitor general where we would

take the position that referendum supporters, once a referendum was held, had no standing to argue that. i filed a brief cited by the court and in hollingsworth versus perry once the referendum was over and once the legality of the referendum had been determined. referendum supporters did go into court and argue about and got to defend whether the referendum was adopted. but once that was decided, their job was at an end and they may have an interest. mr. cole -- of course they are intensely interested in how legislation is carried out. we are all intensely interested in that. >> mr. lazarus, i believe your

briefs and about 1:30 this morning i reread yours and picked up on a footnote that dealt with a subject that we're not dancing around but needs further amplification and that is this take care clause. and i'd like for you to amplify, not just what was on the footnotes but your interpretation of the take care that the laws are instituted. >> yes. thank you. what i was saying is i was, in my argument about what the take care clause should be interpreted, i was focusing on the actual text. i was focusing on the fact that

it doesn't simply say that the president should execute the laws. it says that the president should take care to see that the laws are faithfully executed. those are very odd or they are striking words and just on the basis of the text they are saying take care and to see that which means that the framers can't be a cop on the beat. he was going to be supervising people who supervise cops on the beat and that was what his role would be and then it uses the word faithful which i think both means good faith and then faithful to all of the laws that the president is charged with administering, which is a very important function because congress passes one law and the

president is implementing laws that are already there. and i felt that there was support for the understanding of the take care laws in the legislative history of the convention because and execute the law and the take care language and the faithful language was added as the draft moved forward. i think that's very powerful support, that this is indeed what they envisioned. >> particularly the professors among you, you all proved to me when i took the florida law bar and it was an essay exam over

three days, and a very good friend of mine named paul steinberg had a party at himself afterwards, a postmortem. and his father was an attorney in new york named mo. he let he listened to his son and i talk about it and he thought he failed. when i read professor turley, i do appreciate the fact that you are seen in your brief and testimony to accept the fact that there is a potential lawsuit that may be filed with reference to the standing. but i also went carefully through your prepared remarks and where you mentioned the word congress often and i didn't write the number, you only referred two times to the one house branch. and today in your testimony i

heard you distinctly refer to this body and i'm curious what this body is and i come back to mr. dellinger on the one house business. but i serve in this house. i made a vote. i don't feel that my vote was nullified. i also am mindful where a resolution of this case is only one where a resolution of this kind has occurred and that was in mcclure versus carter and that's the only one that is almost on point with a resolution having been put forward other than as it pertains to subpoenas. that said, some of those cases came out of bipartisan legislation advisory committee.

the speaker in this case has chosen to bypass that committee and i don't impune any motive on his behalf but i do suggest it would have been a stronger house resolution had this been that contact. i think that's the point that mr. mcgovern was trying to make. you said it to congress and i'm just curious, based on the precedent that i'm sure the four of you know and i certainly do, how it is that one house of congress in this particular case that is going to institute what amounts to 200 years of history and whether or not they have injuries and the reason for threshold for standing. and i'm seeking your input and then i'd ask mr. dellinger to

respond. >> thank you. i suppose i should start out with the same position as where walter has been called a standing hawk. and a standing dove and although it does confirm many things about my assumptions about walter growing up, he can't remember where he had this strong view on standing, i have this vision of him in elementary school objecting to the standing of his teacher to object to him. but it wouldn't surprise me. but we clearly take -- we approach standing in a different view. in terms of the body, i am referring to this house. i don't agree that houses of congress need to litigate in tandem.

indeed, if you look at many of these cases, they did not. that's a route that simply is not how it happened in the past but it comes again to this question of injury. i think that when you graft on these requirements that both houses have to work in tandem, i'm not too sure where that comes from. i bloof that this house has its own institutional footprint and own institutional interests. when it speaks with one voice and obviously people are going to be voting against this authorization but when an authorization comes out of these houses, i believe it should have institutional standing. now, this -- this lawsuit would sail right in the middle of the choppiest area of standing. there's no question about it. i would assume that walter would agree, there are uncertainties here on both sides. walter believes it's clearer in

terms of injury but i doubt anyone could possibly claim that we have an answer from the supreme court on legislative standing. what i can say is that the court time and time again has chosen not to close the door on legislative standing. >> you do agree that presidents have -- there's that intersection that enters and presidents have always tinkered around the edges. we didn't just get to president obama for that. but mr. dellinger, did you have a response? >> no. >> a lot has been said but everything that needs to be said has not been said yet. therefore, i want to refer again before the ranking members' unanimous letter and this will be my final words unless we are here for another round which i would delight in because i had minimal questions i would like to ask all of you.

but charles again reading and later now i'll finish, miss cole, you professor lazarus and i'm about 3:00 morning where i read teefer for the first time. he says, thank you for the opportunity to provide this. i served in the house general counsel's office in 1994 and 1995. i'm sure many of you know him. since 1995 i've been a professor at the university of baltimore school of law. i have 15 years of litigating experience, including many, many experiences conducting cases in federal court. i've had more experience than anyone else focused on what iges accepted and does not get accepted. i might know that i kept my hand in in a bipartisan way in

hearings involving matters like those on which the house council would apply. the issue that became the house's contempt case against attorney general holder. footnote there, i don't want each of us to become little junior attorney generals. i was chairman since and turning back to teefer, with a raid on a member's office. in recent years, i've testified supportedly for house chairs and fully expect to do so in years to come. the speaker never told the house counsel's office for anything about this faithful execution case for very good reason. there is no standing. and it is a bad idea for a speaker to file such an embarrassing loser. what we learn in the house's

office is that the house does not have any standing for anything remotely like this faithful execution case because the court knows the house has no injury, in fact. when the president does something allegedly violating execution, the house does not lose one penny. no one in the house goes to the hospital. it probably does not go down in value. the house does not suffer divorce or lose child custody. focusing on the issue to be cited in the speaker's complaint, a delay in providing federal health insurance, the speaker's office does not itself need the insurance sooner, does not have to procure substitute insurance, does not have to pay more to buy the insurance or otherwise does not experience a dime's worth of real injury, in fact, or different. this more focuses on providing his experience and he goes on and i won't cite to all of it

but he does say that we know that in cases remotely like this one, the justice department encourages judges with much success to flail someone like a house council that is like me with pointed and decisive questions about a point like the speaker's. and i can hear myself in district court now when this lawsuit is brought. where is the solid real injury, in fact, to the speaker? wouldn't there be a more real case if we waited for a real, livid plaintiff with real out-of-pocket losses and burdens? what's your best precedent that a speaker ever file a complaint like this? do you have any at all? the faithful execution law has to do with the president, not the house. where in the clause does it say expressly that the house has its own right to vindicate by a

suit? if you don't like what the president does, don't you belong not in their courtroom but back in the capitol or house building doing what they do, mr. cole, mr. dellinger's comment, i don't dare to speak for him, meant that we have any added role. he means as it pertains to the law but certainly we have rights as it pertains to oversight and we exercise that a hell of a lot around here all the time and on both sides, to answer miss cole, it's not unkuft mare that these stunts take place and i don't know the number of 68 that you came up with and i hear and i didn't hear speaker boehner and i didn't hear him at all. he goes on and i want to conclude by lose using his last

paragraph, it's worthy of it all and perhaps one day when we have the mark-up or the rule, i will read it off. court disdains making congress the plaintiff. that gambit was tried before in mcclure versus carter. congress questioned whether judge and former distinguished representative mitva appointment conform to a constitutional provision. so congress passed a measure much like the one for this speaker's suit, the statute authorized a member to sue then president carter. the case went before a three-judge panel, didn't provide congress with article 3 standing. he said, after a lot of language from the mcclure case, no doubt for enthusiasm for this case will attempt to gain support for the supreme court opinion.

and this is not a supreme court opinion. but i challenge them to find another opinion higher than this three-judge panel dealing with a statute that specifically conferred on congress, not on citizens whether in congress or not but specifically congress the right to sue the president. opinions about article 3 in general that do not address special congressional rights by some measures to sue and do not communicate this special scorn on congress for trying about as this suit from the speaker does. professor turley, i disagree with you in most respectful terms with reference to the matters of how courts have allowed this to happen. courts have rightly, in my opinion, stayed out of this mess and i agree with you, it has helped to make a mess. i don't know how it will get

corrected. probably beyond all of our lifetime somebody will come up with a constitutional amendment that likely can address many of the things in a more clear fashion. i don't want you to go out of here not knowing that madison, as you the madisonian scholar did not speak to this subject and i know that you know that he did and he allows this power over the purse, which is one that we do have, may be regarded as the most complete and effectual weapon with which we can obtain a redress of every grievant and for carrying into effect every just and saller sa salutory measure. that seems pretty explanatory to me. i have to have my political shot. this is the party, the republican party, that for all the 51, 52 years that i'm a lawyer have argued about

frivolous lawsuits. if there was ever one, there is it. thank you. >> the gentleman from georgia is recognized. >> thank you, mr. chairman. thank you all for your patience here. means a lot. it's been a valuable discussion. i don't think there are many members of congress that would not argue that having more of these discussions and braps perhaps less of the theater that goes on elsewhere would not be better for the process all the way around. mr. lazarus, when you first gave your testimony i thought i heard you to say in reference to the many allegations of executive branch overreach that we have -- had been out there in the press, that you have never seen a charge with merit, is what i thought i heard you to say. is that an accurate -- >> what i was saying, congressman, i was only going to address the aca issue. i am aware of other actions or

inactions that some have allegationed to constitute illegalities and constitutional vi violations. that includes so-called daka program in the immigration area. recently it's been the exchange of private bergdahl for five residents of guantanamo. there have been a few others. and so among those allegations i haven't seen one. now i will say that professor turley has -- i think much of his criticisms of this, and the previous president, in this regard have focused on issues in the national security area. and frankly, i'm -- i don't feel as confident about what my opinions might be about that but

i would say that i think that president obama has addressed those issues in a forthright way, in any event. that's what i meant. i just mean if you want to ask me about one of these areas that have been a focus of attacks, i do my best to answer them. >> in that vein, you listed a long list of everybody grievances similar to a list that mr. mcgovern had listed earlier. what i understood from mr. mcgovern is that it made the process seem more political that four weeks ago we might have had that same long list that you have described. today we've narrowed it down to one specific grievance in this legislative language that we're talking about today. does narrowing it down to one specific grievance make it more political theater, in your eyes, or does it make it more likely to be able to overcome those very difficult thresholds for

standing? >> well, i don't know that necessarily makes it more political theater or not. i do feel that as i said in my testimony, that the particular alleged infraction here, namely the delay in implementation of some aspects of the aca employer mandate seems to me to be a relatively minor and very routine type of occurrence, as i've said before, and to be blowing this up into a major departure, with all due respect, seems to me to be not very compelling. from a legal standpoint, i think i might want to just say one thing with respect to a point that my colleagues to my right here have made, and that somehow if you let this go, you are allowing the president to assert

an entirely new power to extend a statutory regulatory deadlines. well, it is not a new power. as i noted in my testimony, the administrative procedure act which was enacted in 1946, and which is the fundamental framework with which congress and all of us understand the administrative process is supposed to go forward, talks about unreasonable delays. not all delays. unreasonable delays, and the courts have ruled that the existence of a statutory deadline is a significant factor to be taken into effect for a court to determine whether a delay is unreasonable. but it is not ipso facto an indication of unreasonableness. so i don't think there is anything new about this. i believe it is relatively routine. agree with professor turley that there are dangers in the amount

of discretionary authority that a president can't not have. but zeroing in on this particular infraction seems to me to be not very well advised. >> i want to talk about that routine nature. because i agree with mr. cole, i don't take any pleasure in going down this road. there are lots of other avenues we could have provided. mr. turley lamented the absence of giants like senator byrd from west virginia, like daniel patrick moynihan from new york. i put alfonse dimato on that list. there were those folks who would prioritize their article 1 obligations first, and their democrat or republican obligations far down that road in the decade or so i have been watching this process, i would say parties of -- both parties are implicated in the go along, get along policy with residents

of their own party to the detriment of article 1. to me this is a last-ditch effort to fulfill some constitutional obligations i feel like i have. for one, you mentioned in you your opening testimony long-held practices of past presidents of both parties were implicated here. i think your quote was neither unprecedented, nor practice. i agree with all of that. and when i open up the first few pages of the knoll-canning decision, the court goes right to that as well, to say when we are trying to figure out whether we are getting involved in political disagreements or policy disagreements, whether we try to do a separation of powers, we look to past practices. i happen to have agreed with the lower court in knoll-canning that george bush and bill clinton and bush before him and reagan before him all violated the recess appointments clause. the course narrowed that

certainly from the lower court decision. but that past practices matters. and certainly not from a legal standpoint -- thank goodness noll canning felt egrieved. what if it was wonderful for america that president obama got past that intransigent senate and got these folks in and no one had ever experienced a harm. i would tell you that article 1 had still been harmed. we would have experienced an institutional harm even if no private sector entity ever brought that case. so how then, here in a situation where the court, not by 5-4 margin, but by 9-0 margin, said the president was way outside of his constitutional lane. had there not been a private sector party aggrieved, where

would this body have found standing to file that case on behalf of article 1 of the constitution? >> i just want to make one statement, then turn the mike over to my more learned colleague, walter. five members of the court, the majority actually didn't find that the president was way outside of his lane. he found -- they found that the president was only a little bit outside of his lane really and defined the lane the president had to move in this terms of when he could determine there was a recess. they defined him relatively narrowly, but i'm going to let walter answer the standing question. >> with no one injured, the house would not have had standing to challenge that. i agree with that. and in this case, there would be lots of other remedies that congress has had and indeed the senate has on occasion been quite active in curtailing the

president's use of the recess appointment power by saying that two decline to confirm anyone who accepted a recess appointment. they give you one very powerful tool. but in this case actually, the president and his predecessors from president reagan on, were vindicated when the court upheld at least a majority of the court upheld the fact that you could make recess appointments even though the vacancy occurred before that recess and you can do it during a session. and everybody agreed that if congress is gone for 30 days, the president can make a recess appointment. the only issue is whether "pro forma sessions" -- in english that's a mere formality. whether that ought to be taken as meaning this wasn't a 30-day recess. that seems to be a legitimate question on which people could disagree, and the court thought

that, you know, even though it was a formality, it meant that the president couldn't exercise his recess appointment power. but the decision was basically a vindication of the recess appointment power of the president. and if congress doesn't like recess appointments, there's lots that they can do about it, other than file a lawsuit. >> that is a helpful bit of insight into where the thinking process happens. because i would have said the senate was only in session for one purpose, and that one purpose was to prevent the president from making recess appointments. and so for the sole authority granting to the senate to be involved in approving appointments, they convene for the sole pups of prohibiting the president from exercising his power -- and yet he exercises it anyway, you all call that a minor overstepping of his lane. i call it intention aal a abrogation. >> the court agreed with you,

mr. woodall, the fact that the senate held a bang-bang form malt session did deprive the president of his recess appointment authority. but i don't think it was considered at all an open and shut he question about whether that -- you know, and the purpose of the recess appointment was, if congress is gone for a month, the president ought to be able to have a cadre of officers. the contrary is, congress can stop him from doing that. look, the court agreed with you on that point but i don't think, to me, it was treated as way outside the bounds. actually, the opinion of those who condemned presidents from reagan through carter, bush, clinton, their view is much more strong that all of these presidents were outside the lane. but i think on this particular question, whether you treat a formality session as breaking it up is not a question where you are outside -- way outside the lane. >> whether we talk about harms and who's experienced it, of

course it was completely different circumstance here. the speaker is not my republican speaker, he is not the democratic speaker. he is the speaker of the house. certainly this case is distinguished from all of the other cases that were cited about the petitioners being an individual member as miss slaughter was or folks behind the referendum as was true in california. that responsibility for the institution, you explained it away fairly well, mr. dellinger. you said if you print in a statute that says "x" is going to be outlawed after this date, that if you really mean it, you should come back and pass a second piece of legislation that said, i really mean that it should have been outlawed after this date. that first piece was a recommendation but now i really mean it. that prior practice had allowed this, as mr. lazarus pointed out, practice has allowed to this occur, the administration

procedures act is implicated. that's why it's so important to me that i'm not be in the business of allowing prior practice to begin on my watch, that we keep these things separated. but that seems to me, as you have explained it, that a -- that the 51% of the house and senate can pass a piece of legislation, send it to the president's desk and get it signed in to law that creates the deadlines, some of which we're talking about here today. president decides he doesn't want to implement those deadlines on the schedule that we have laid out in law that he's signed into law, and the remedy that you recommend is for us to pass a new piece of legislation that says "i really mean it." that this is a rigid deadline. i don't mean to make light of what you're saying. >> no, i take that. >> but then it must go to the president who's already said he's not interested in following that deadline so now he vetoes that new piece of legislation that says this is a serious deadline. and so now despite the fact the

constitution lays out a regime where it only takes 51% of us in order to make the law of the land, now in order to achieve the remedy that you have described as the only remedy that's left available to congress, i must now have two-thirds of my colleagues on both chambers agree, which seems to make a mockery of majority rule as our framers laid out. tell me, as we talk about whether or not a unique case like this should be able to cross the thresholds for standing, tell me how it could have possibly been true that the solution you lay out is the solution that the framers intended. >> well, i think because they saw that each of the branches had considerable authority without running to court. the first one i mentioned of enacting a new piece of legislation to take away the discretion that an administration my assume from prior practice allows the transition periods. but there are many others where

you have the initiation of authorities over appropriations, for example, the senate over its confirmation process. there are enormous number of tools that you could -- the president can't even have a secretary in the white house with him as his entire executive branch unless you fund it. so there's plenty of authority on the part of congress, shy of having to go to court. and in this case, i don't think it is a matter of saying "i mean it." look. i can see the debate. it depends on how rich the prior history is of there being a transition period. of course whether you say here is an effective date, you can't burden any citizen before the effective date. but when you have a complex process and the administrative procedure act sets up a whole consultative notice and comment period that mr. lazarus lays out, where you have that process, whether that process allows you to say we're going to

delay the effectiveness of certain of the requirements, or whether you can't have that authority after the date, it seems to me that a legislature would be appropriate. house is not the congress. the fact that congress can't legislate a more rigid deadline and take this authority, impose this on business, that's just a matter of the fact that you don't have the whole congress. but i understand that as a practical matter it looks like suing in court is the best answer to people. but that just assumes that you have to have the courts weigh in this any case where there's no injury. i think mr. lazarus wants to add something. >> no, no, i agree entirely. but i just wanted to say that there's been a lot of discussion about the relative decline of congress' role among the three

branches of government, and that certainly has occurred and i think that it is regrettable. but i have to say that now asking the court to protect your interests about a matter as clearly within the wheelhouse of congress and the president working out compromises over how is law is to be interpreted, running to the courts to bail you out, with all due respect, is a huge leap toward radically further diminishing congress' role vis-a-vis the courts. and by the way, congress has not merely lost authority relative to the presidency in the last several decades, and particularly in the last year since chief justice roberts became the chief justice,

congress is steadily losing power to the courts. and if you really want to protect your prerogatives, i would certainly not want to run -- >> with respect, i absolutely agree with you that that's a pattern that's been in process for some period of time and i'm interested in seeing it recede. though this is not a policy question of whether we like to go to the courts. this is a constitutional question of whether we have any other option available. mr. dellinger's laid out an option where we could get a two-thirds majority and perhaps make something happen. you've mentioned the power of the purse which is professor turley pointed out, the president has been moving dollars around on his own, as well, and i still have no remedy in order to seek that. i do not relish the opportunity of having a co-equal branch of government give me my freedom back. i don't relish that at all.

but there is a -- the question of standing here today, you said it as if it's day one of any american government class. and likely it is. that for years and years power's been leaving the article 1 congress and flowing to article 2 and 3 branches. the constitution laid out that framework. we all would say there's been a pattern of erosion to that framework for year upon year. and who has the power to fix that? if i can never gain standing in the court, i can never litigate that, perhaps we're just going to have elections over that. but the proper framework for amending the constitution is not to allow the gradual erosion of power. the proper framework is to have a constitutional intervention, have some amendments offered on capitol hill. that this is not an academic question. this is a question of our responsibilities as republican and democrat.

to police slaughter's point that this was not done in a consultative fashion. i regret that. mr. mcgovern, no doubt, shares that. but i look no further than noll canning. you raise this, mr. turley, that folks seem to run from congress instead of be its institutional defenders. i get it that folks wanted who they wanted to be on the national labor relations board. but it's been two years since that. the court had to decide that congress was being trampled by -- the senate did not stand up to defend the prerogative of the senate. 9-0, irrespective of how wide or narrow you think the decision was, 9-0 the court said power is leaving capitol hill, leaving the people and their representatives and moving to an executive. and not one person in the leadership of that body said a

word. i'm not impugning them, because they may have thought that good things were happening, that the ends were going to justify those means. but what i'm desperate to find today, and why i appreciate the speaker moving forward on this is, i've used all the tools in my tool box. and who's going to stand up for the institution, because it's not about me in the 113th congress today. it's not about the 114th congress, the 115th congress. it is about the next 250 years. and if not us, then who? you've identified the lack of leadership on the hill defending the institution itself. where do we go? if it turns out that mr. dellinger and professor lazarus are right, if the hurdled that you have identified as being very hard, if we cannot get over those hurdles, then what. because i don't think this is political and i don't think it is academic. i think it is crucial. i think it was the very core of what the division of powers are in this country.

>> now, it is a very powerful point. walter and i read two different opinions in canning. the way that he makes it sound like walter would tell napoleon and waterloo, look at positive side. i don't see how that was a victory. but what is more importantly, the case, is that the court gave a resounding rejection of legislative history. i wrote an academic piece on this. i've been very critical of legislative history as a basis for statutory interpretation and the court clearly rejected that, as it must. it does not matter one iota if every president has violated the constitution. that history doesn't make it anything less than a violation. but in terms of your question, we've been there, done that. everything that my colleagues have said. when they said, well, look, you can't have a secretary that's not funded. the house of representatives pulled the funding of a position

in the state department because they did not want this public advocacy position to continue. i'm not getting flu the merits of that. what the administration did, and this was predictable because of the way the law was drafted, is they changed the name of the position and had that individual continue. now what's interesting to me about that is, actually that was clever and not necessarily unforeseeable. but there's so much discretionary funds sloshing around the administration that they could fund those positions. when we were in court, what i was representing both republicans and democrats against the libyan war, the administration funded that entire war with discretionary funds. now that's something madison would not have anticipated when congressman hastings was -- gave me that quote, and any times james madison is quoted, it fills my heart with joy. but there has been a major change in the power of the purse because of modern appropriations. and there's so much discretionary funds sloshing

around, you simply can't use it the way that it could have been used during the early republic. so the question is, what do you do? what i don't hear from this end is i -- i hear the senate saying, look, just try again. pass more legislation. try to use appropriations. this president just moved $454 million from an appropriated use to some other use. even democrats in the senate denounce that as a violation of the power of the purse. who has standing in such a case? what i would tell me friend walter is that, the framers were incredibly clever but also practical people. they wouldn't create rights and powers that could not be enforced. standing doctrine has gotten to the point where you can have violations like that, and there appears no one who could possibly get a leenk hearing to challenge it. >> the truth is that mr. hastings and i should be standing together on issues of article 1 versus article 2. harry reid and john boehner

should be standing together on those issues and there should never be this need to go to court. but what we must do now is reverse this trend that we can all agree has been going on for decades. there are things we're doing in this body that take us a good step in that direction. i'm sure we are things we do that exacerbate those challenges that prevent us from working together. but if we are unable to do it, and if your colleagues at the table are right that the institution will not have standing through its speaker, john boehner, then the american people are just left to see the erosion of that document that was said to be written in some sort of stone to preserve and protect our freedoms into the future. i cannot believe -- i cannot believe that in our society, in our form of government, there is not a pathway to protect the people. because after all, this is not a

constitution about the government's power. this is a constitution about the people's power and how that will be entrusted to government. it is counterintuitive to me that the very same men who wrote that document would have allowed it to prevent the people's power from being protected. i'm grateful to each and everyone of you for your time. be happy to give you the last word. >> mr. woodall, i want to -- there's one insight you have with which i agree, and that is, over the years that i've watched congress and the presidency, there is less of an institutional sense of members of the house and senate, in both parties, than there used to be. members tend to identify more with their political party and less with their institution, the house or the senate, and through both parties as we switch from a republican president, like mr. reagan, to a democratic

president like mr. obama and congress is switching, there is a much greater erosion of a bipartisan sense of standing up for legislative prerogatives, as that political identification has, unfortunately, become across the board more dominant than the institution affiliation. but when you ask the question what is the answer, i do think it fair to say that over more than two centuries, we've gone by with lots of clashes between the congress and the president, without their having been a need to have the president sue the congress or the congress sue the president in the courts. and i think we can get along quite well without starting down that road of judicial empowerment. thank you, sir. >> we absolutely have. i tell you, i hearken back to president obama when he was speaking as he was preparing to delay the employer mandate. and he said in ordinary times, these times that you're discussing, these times that have governed our country for 200 years, in ordinary times,

i'd have gone to capitol hill and i'd have requested a fix for this language. but these are not ordinary times, and so i'm going to do it myself. i long for returning to those ordinary times where we worked together. with that, mr. chairman, i yield back. >> chairman yield back its time. if the panel could do me a favor and remind me of your timing available. we've now exceeded by about 18 minutes what i had originally thought would be the timing we'd be here. not trying to push you, but is there anybody that time presents -- >> i have a speech. if i can just call them to try to see if i could work around it. >> mr. lazarus is calling to reschedule an appointment that he has. i will stay here until the last dog dies and talk about these issues. >> i will not leave here until walter does. we are therefore at your disposal, mr. chairman.

>> gentlemen, the last dog died two hours ago. don't worry about it. thank you very much. gentleman from coll is recognized. >> thank you, mr. chairman. i have been listening and have found the testimony very interesti interesting. it really makes my head spin this concept, as i try to wrap my arms around it. there is a law and there is a piece of that for penalties for companies that don't offer health care to their employees. it is a tax. it's a tax that republicans are suing to raise. i've often said this but it appears like the tax and spend republican party can't pass their own tax increase so they're trying to get the courts

to force a tax increase on companies across america at a time when our corporate tax rate is already higher than every other developed country. the average rate across the ec developed countries is close to 20%. our rate is 35%. i've long been supportive of chairman kamp's initiatives to lower that rate. i think they touting split the difference and call it 26.5%. but republicans here can't raise that rate through the membership. democrats don't want to trays, and not enough republicans want to raise it. they're trying to back-door corporate tax increase through the courts. and i think that's an inappropriate way to raise taxes. if they want to raise taxes, just come out and say it. put that bill on the floor. i'll vote against it, mr. chairman. i think the last thing we should do is take money away from the job creators in this country and, frankly, i applaud the

president's efforts to ensure that companies are not penalized for another year and give them a chance to be able to offer benefits to their employees. really makes my head spin. my question for mr. lazarus, is is there any question in your mind that president obama had the authority -- we'll wait a minute here. he'll be right back? let me then proceed. i would ask -- well, i'll continue with my opening statement until he returns. this has been -- it's been fascinating to be able to observe this kind of legal concept of this republican tax increase and how they want the courts or judges to do it. i do believe it is inappropriate for, if they can't get a tax increase through the house and

senate and the president to sign it, to try to turn to the courts to force a tax increase. i know that's been done in other areas in certain states. i have opposed that. i think that if the republicans want to increase taxes, they should seek to do so through the democratic process. if they want to penalize companies for not offering health care, they ought to propose that. and, frankly, i think that this step that the president took is very important so that companies were not penalized and it gives another year to figure out how to make sure they can offer health care benefits for their employees which, of course, the affordable care act was all about. as we sit here today, i have a hard time understanding the motivation behind this effort. perhaps since they know that tax

increases don't poll well, they're trying to disguise this republican tax-and-spend congress in the form of a court order, however unlikely to get. perhaps they're simply just trying to apiece peoppease peop want more severe actions against. the president, trying to appease them that somehow a lawsuit is enough. there have been -- i guess i would go ahead and ask mr. dellinger this at this point -- have there been other actions by other presidents, in both parties, that have stretched back for several decades that are similar that you would point to? >> you know, there are. i think si lazarus' written testimony, mr. polis, goes through a number of those examples. speaking of -- >> the question -- may i repeat the question, mr. lazarus? the question is, if there are prime examples of presidents doing things similar to the

kinds of transition delays. >> i'll be laep to happy to red that. the question was are there examples of other presidents having done similar actions? >> thank you very much, congressman polis. i apologize for taking a break which i needed to do. yes. in my written statement, i noted that phasing in of the medicare prescription drug benefit required some very similar delays. that's a very important precedent. i also noted that in the late '90s when the clinton administration was charged with implementing the balanced budget act of 1997, which had massive changes in medicare, that

literally hundreds of regulations were required to be adopt adopted, and over half of them were adopted after the statutory deadlines had passed. not because the administration didn't want to implement the law, but just because it was overwhelmed. i've also noted that the environmental protection agency has been a significant player in terms of having to deal with very complicated new regs that oftentimes have been implemented after regulatory deadlines have passed. that's why the examples were from the clinton and the bush and the obama administration, for that matter. now i also noted in talking about the epa case that there were significant examples from the bush administration where i think that my environmentalist

friends were correct in attributing the motivation for the delays, not to an eagerness to implement the law effectively, but to an eagerness not to implement the law effectively, or at all. and so i have agreed with my friends over here to my right that this is a problem, that this is an authority that can be abused. we just don't agree on the remedy for it. but in any event, there are ample examples of regulatory deadlines being passed by past president. and as i said, it is really critically important that the administrative procedure act recognizes the necessity for reasonable delays and the courts have understood that sometimes to include delays that go past statutory deadlines. >> mr. lazarus, just one more question. is there any question in your mind that president obama had the authority to take the steps

he took to implement the affordable care act? >> not in my mind. i think that he did under the statute for reasons that both walter and i have explained and. again, i think that this type of using reasonable judgment in how you implement laws and integrate all the different parts of a complicated law like this and integrate the laws with existing laws using this kind of reasonable judgment is exactly what the take-care clause of the constitution contemplates that the president should do. >> thank you, mr. lazarus. there are tones and n non-attorneys on our committee. there's scientists. our ranking member. there are diverse backgrounds. i'm not an attorney. i focus on results. what i see here, and i don't

like it, is republicans are trying to raise taxes on businesses and i don't think that's a good thing to do. if this lawsuit succeeds, american job creators and companies will be penalized. that's just very clearly cutting through it all. that's what republicans are seeking to do, penalize american companies, raise taxes on american businesses. i don't like that. i'm against that. i think that's a bad outcome. i wish the republicans would reconsider that. the legal stuff is interesting. it's fascinating, but i'm focused on what the impact is and i sure hope this lawsuit doesn't succeed because it will create unemployment and it will set back our recovery and the republicans will have no one but themselves to blame for this huge tax increase. i yield back the balance of my time. >> gentleman yields back his time. good thing i came today because i've never heard of a republican that wanted to raise taxes until i got here today. thank god. gentleman from florida's

recognized. >> thank you, mr. chairman. i always love it when i hear that we want to raise taxes and it's a novel approach that you're taking. but i wasn't here when the affordable care act was passed. what year was that? 2009? >> 2010. >> and so i didn't vote for it then. and i didn't vote for tax increase then but i'm sure a number on this panel on the left did vote for it. but i think we're way off base. i'm not a lawyer. matter of fact, i'm with mr. cole in regards to i don't like lawsuits because -- >> will the gentleman yield for just a moment on the point? >> sure. >> i will just remind the gentleman that he and his colleagues did vote for those same obamacare tax increases that are incorporated into the paul ryan budget as the baseline for revenue.

those very same tax increases that were in obamacare, the gentleman did vote for. >> well, we don't want to let fact and fiction get in the way of good theater. so at the end of the day, it is this -- as sheriff, i got sued for acts that i didn't necessarily commit. we would try to work with plaintiffs in regards to try to work through it. to settle it or not. could go to court. and we did a lot of times. but i think the question comes down to, if the president needs to delay something -- and i know this body has said that because we agreed on certain delays. now we may have different reasons for agreeing to it but we would have agreed to it because we were clear to the president. so when i hear the discussion about how we need to have a

different approach, i do think that it would have been nice to have the president reach out and say, here's the problem. now you may -- republicans may want to delay it for other reasons, but here's the reason why we need to delay it, can we get this done. that never happened. that dialogue never took place. i don't come from a legislative background but i do come from a background enforcing the law and i heard the comment made about traffic enforcement and when a new law was passed, basically it was about education. and if it was a county commissioner, a state law that was passed in regards to traffic, we worked with the legislators to let them know that we're not going to go out and enforce this. i mean write a ticket. but we are going to enforce it by making a stop and educating the person as to why they just created a violation that they may not have known about.

i mean that's the education process of law enforcement. it's not about just generating revenue. i guess what frustrates me -- i've been up here now finishing up my fourth year. and you just feel somewhat irrelevant in regards to the process. and i think you've all touched on the point that this is not unique to this president alone. this has been going on for decades, the erosion, i think, of the power of congress, in general. i agree with mr. woodall, how do you get to the point where you reign the president back in. you heard the dialogue that he had as related to, okay, we pass a law and the president can veto it because that's obviously within his purview. then the bar gets raised again

to pass the same legislation. obviously we know that the higher you raise the bar, the more difficult it is to get that passed. particularly if you just have a slim majority, in any house. i go back to what mr. turley said. while we're making this an issue about congress. it really isn't about us. it is about the constitution. and i think the president, going back to 2008, if you listen to the comments that he made, he said it was about the constitution. he was constitutional -- he taught the constitution. so when did the transformation -- i guess when you raise your hand to become president of the united states, that's when the transformation happens about, hey, listen, i'm more important or more relevant than congress itself.

i worry about the process. i will tell you that, whether it is republican or democrat, i worry about where we go in the future on any president. because it has been eroding over time and everybody's agreed that there's been an erosion. you may have different reasons why, but everybody's agreed there's been an erosion in regards to the constitutional responsibilities so when do you say enough? somebody has to. so i give credit to the speaker in instituting a lawsuit. i don't like lawsuits. because i think it was rightly pointed out, you never know what the outcome is. i didn't know that in a criminal case we didn't know what the outcome was. you know that sometimes you'd rather have a judge than a jury in regards to determining the fate of a case. but i'm willing to put that in

the hands of the court to determine when the president overstepped -- not this president, but any president's overstepped their bounds, so set the precedent for the future. because there's a supreme court case that was just cited in regards to other presidents doing the same thing. the precedent was set. but at some point you got to break that cycle. so who breaks that? and think the nlrb case was an example. who breaks the cycle? one other thing. just about lawyers. i always loved it when i had my legal counsel at the sheriff he's office. it depends on what opinion i wanted, it was dependent on what attorney i called in to talk to, because obviously there's

opinions about all of this. ultimately the opinions are valuable, but they really don't mean much until the court rules on whether or not your opinion is valid or not. so i'd love to hear from any one of you in regards to where do we go next if we don't do this? >> well, one example -- you are asking how do these kinds of deliberate refusals to implement or enforce a law get corrected. it is a big -- it is a complicated problem. but in how to 7, i was referring to the fact that the bush administration appeared to be simply not enforcing the clean air act in significant respects and in 2007 the supreme court in a very important decision directed -- ruled that the administration had no statutory basis for refusing to consider whether the clean air act covered greenhouse gases and

directed the epa to have a proceeding to make that determination. so that was something of a corrective, although i have to say that my understanding is that epa still really didn't do very much. because the court really doesn't have a lot of power to enforce its will over complicated issues like that. but that began a process which has resulted in a very vigorous program of greenhouse gas controls by this administration. but it takes -- it takes political correctives in the end. it can't be done without action by congress and perhaps by the courts as well. >> i find much of the view of the courts and our system that's reflected in the testimony to be baffling. i have to say once again, at least two of us have

long-standing positions on standing which are different. but when you have your critics saying, what are you going to do, go run to the court, like you're running to your mama or something, it doesn't track with me. we have a court system that has as its primary role the maintenance of the separation of powers. if you list their series of jobs in the federal courts, that is the most sacred. that's it. they gave them life tenure, made them independent for a reason, so they could resist you and could resist the president and they could call the line shots and say what's in, what's out. this idea that you are going to increase the power of the courts on a separations issue is just other-worldly to me. they're not increasing their power. they're calling a line shot. they're saying who is it that has this authority, they're not

taking it upon themselves to answer the question. they're picking who is supposed to answer the question. so this idea that we're going to inflate the power of the courts i think is wrong. the question is where do we go from here. there's a place to go. we have two political branches, and when there are major collisions, we have a court system. this perception of the courts is purely pedestrian in your fights. leaves me to wonder what their function truly is. that's why i'm baffled. if this isn't their function, i can't imagine what is. >> may i just respond? >> you have about two minutes. because we got to go to vote. >> well, just that the issue before the court would not be does congress get to make the law or does the president get to make the law. as professor turley was suggesting, the issue is going to be interpreting the degree of discretion that an

administration has and bringing in new requirements in to place. that gets you enmeshed in the issue itself, and that is going to be true every time in the future if this precedent is set that the house of representatives goes in to court or the senate goes in to court and asks the court to determine whether the president is carrying out the law in the way that they intended. and that i think is different. >> i'd like to just respond to that. i don't think that's true at all. again, look at the supreme court's decision in uarg at the end of june. this is what they said. this was -- by the way, this decision was a fateful execution/separation of powers decision. "we would deal a severe blow to the constitution separation of powers if they upheld this tailoring rule by the epa. continuing the quote," under our system of government, congress makes laws and the president acting at times through agencies like epa faithfully executes

them. power of executing the laws necessarily includes both authority and responsibility to involve some questions left open by congress that arise during the law's administration. >> i just want to thank this panel for -- because you all make compelling arguments. that's part of what we have to do is decipher those compelling arguments. you hear a whole lot of stuff here about what it is going to cost. there are ancestors paid the ultimate cost for our constitution. there is no dollar amount on that. with that, i yield back. >> ladies and gentlemen who are witnesses today, i want to thank you. we're sending rather abruptly because we're at the last few seconds of a vote and our members have to go vote.

thank you. you've done outstanding job and i want you to know there's a piece of pizza waiting at the end of the rainbow. so if you'd like to go do that. this now closes the hearing portion of the legislative hearing on committee on the draft discussion and the witnesses are excused at this time and this now ends the hearing portion of what we were attempting to accomplish today with legislative hearing committee on the draft discussion. [captions copyright national cable satellite corp. 2014] [captioning performed by national captioning institute]

>> today on c-span, "washington journal" is next and then our coverage of the house with ills dealing with the tax deduction for charitable giving and veterans health care. in 45 minutes, we will discuss

immigration and the influx of unaccompanied children from central america.