with federal law and therefore we believe violates the administrative procedures act. third, when a federal agency challenges -- changes the rules like the president has ordered here, the administrative procedure act also requires that due process is followed. .

here it serves as a temporary bridge for those would would

receive permanent status. second, in 2001, deferred action were for aliens who were under the victims of trafficking and violence against protection act. here it served as a bridge. lawful status was ok on the other side of the deferral. third, it was granted for students who lost their visas when gulf coast schools were closed following hurricane katrina. within four months they enrolled in colleges or universities in order to gain the status previously held. in 2009, deferred action was granted for aliens that were widowed by the timely death of their citizen spouse before the two-year period. visa petitions were filed but not adjudicated by the government because of administrative delays. historically deferred action acts as a temporary bridge from one status to another where

benefits were construed postdeferred action. it serves not as a bridge but as a tunnel to dig under and through the i.n.a. there is no visa, the pot of gold awaiting on the sore side of this deferred action rainbow. my second point is that it violates the president's duty to faithfully take care of the laws faithfully executed. article 2, he shall must make sure that the president executes the law. first, with daca, the blueprint for daca it limited officers to turn discretion into a rubber stamp. it was an effort to bypass, and a transparent one at that. second, because daca is not consistent with congressional poll circumstances according to justice jackson's decision, presidential power is at its lowest ever. like the mythical phoenix, the president instituted to these

policies after congress voted down the legislation he wanted. further, the president has repeated over and over and over again key not can't unilaterally. his actions indicate the prima facie case and points to the violation of the take care clause. third and finally, while i support comprehensive immigration reform, the president's unconstitutional actions cannot be hastened. if upheld, democrats will have much, much more to fear than this dangerous precedent. generally, democrats likes when government takes action and republicans like when they take less action. the democrats may approve the president's to delay unpopular obamacare or halt marijuana crimes. it would be different if waive mandates under environmental laws or declines obamacare altogether. in the words of james madison federalist number 5 1, the only way to keep the separation

of powers in place is to counteract -- ambition to counteract ambition. our republic cannot lead the all-important task of safeguarding to the judiciary. the congress must counteract the president's action. the failure will continue executive supremacy and a delusion of the powers of the congress and the sovereignty of the people. the rule of law and the constitution itself are destined to fail if the separation of powers turn to mere barriers that can be disregarded when the president deems a law broken. thank you very much, and i welcome your questions. >> thank you professor blackman. professor foley, welcome. >> thank you. chairman goodlatte ranking member conyers members of the committee. thank you for the opportunity to testify again today. my criticisms with the president's immigration actions are based on legal process. and not any particular policy or political results.

what shaped immigration reform may ultimately take is not my concern as a constitutional scholar. my sole concern is with preserving the constitution and its separation of powers' architecture. president obama has repeatedly said that his motivation for taking executive action on imbration is because he wants to fix our broken immigration system. and what this means is that he's trying to fix our immigration law because of course, immigration law is the only immigration system that we have. so he thinks our immigration law is broken and he believes that it's broken because it fails to exempt certain categories that he thinks deserves exemption from deportation and to whom he believes the law should grant benefits such as work permits. but fixing a law by unilaterally changing it by granting exemptions remedies

and benefits that law doesn't provide is legislating or to be more precise, it's amending. and that's the power given exclusively to congress by the constitution. the president's duty under the constitution is not to fix a law that he thinks is broken but to faithfully execute that law. when a president takes upon himself the power to change a law he doesn't like, we have no democracy any more. we have instead a legislature of one. if congress doesn't oppose president obama's executive orders on immigration it will be writing its own institutional obituary. when congress fails to express disagreement with executive action the courts tend to construe that as acquiescence or implied authorization by congress. this is so-called category 1 from justice jackson's concurrence in the youngstown

steel case. so congress needs to be very careful here. it has a constitutional responsibility to vigorously protect its turf. president obama's immigration actions are unconstitutional for three separate and distinct reasons that i elaborate in the written statement. first, they alter the status of certain illegal immigrants, magically transforming them from deportable to not deportable. second, they provide a remedy called deferred action that congress has not explicitly or implicitly authorized for this category of people. third, they confer benefits upon certain illegal immigrants that again congress has not explicitly or implicitly approved for this population. while any one of these particular reasons will render executive action unconstitutional, when you have

all three of them existing as you do here with president obama's executive actions on immigration, it creates sort of a bermuda triangle of uninstitutionality. it has a uniquely powerful gravitational pull that's capable of eviscerating article 1's legislative powers. it's the combination of all three of these aspects of president obama's executive orders on immigration that make it uniquely dangerous to this institution. i'd like to highlight two points that i elaborate on in a written statement that i think bear a little special mention. first, by granting work permits to daca and dapa recipients, president obama's immigration orders encourage employers to hire illegal immigrants over lawful residents and that's because the affordable care act does not allow illegal immigrants to obtain tax credits when they buy qualifying health insurance.

so what happens is if you hire more daca and dapa recipients, this lessens the employer's exposure to what's called the employer responsibility tax under the a.c.a. so the more illegal immigrants you hire who are eligible for daca and dapa, then the fewer who are eligible to buy health insurance and the fewer who are going to obtain a tax credit for doing so and therefore the fewer employees that you have on your -- in your workplace who are capable of triggering that employer responsibility tax. now, why do i go into that detail? because it means one important thing. president obama's immigration actions undermine the a.c.a. itself by undermining its goal of providing insurance via the workplace. so it's no small irony here that by granting work permits to daca and dapa recipients president obama is in fact undermining his own signature legislative achievement.

second, daca and dapa recipients are eligible to apply for something called advance parole and that means they can get advanced permission to leave the country and come back relatively quickly. without advanced parole, if you enter this country illegally and you leave you have to then stay out for a long period of time, usually about three to 10 years before you're allowed to re-enter. so once a daca or dapa recipient re-enters this country after being advanced paroled, they're considered to be paroled back into the country and paroled individuals under the statute are eligible to adjust their legal status. and they can do this as long as they qualify for a visa, such as, let's say, an employer-sponsored visa. so what does this mean? it means at least for some dapa and daca recipients obtaining advanced parole will provide a -- >> professor foley, you exceeded your time limit considerably as well. can you please summarize?

>> absolutely. it means they will be able to have a pathway to u.s. citizenship. this is problematic because congress has the sole power to decide who's granted citizenship under the constitution and even if just one person under daca and dapa is granted advanced parole and applying subsequently for adjustment of status, what we have is a fundamental usurpation of congress' power. thank you and i look forward to your question. >> thank you. professor, welcome. >> thank you very much, mr. chairman. ranking member conyers and honorable members of this committee for the privilege of testifying at this important hearing. i appreciate reasonable minds can and do differ about the policy decisions, but i want to respectfully share my opinion that the president's actions are clearly within his legal authority. that's not just my opinion by the way. this past november 135 immigration law professors and scholars joined in a letter

expressing their views of these actions are, quote, well within the legal authority of the executive branch, unquote. we are people who have spent years and in some cases, including mine, decades studying teaching, researching and writing on immigration law and we are very familiar what the statute allows and what it forbids. the president has not just one but multiple sources for these actions and i submitted a detailed written statement that documents each of them. i also identified every legal objection i could think of that the president's critics and i've offered why, in my view, why this doesn't need scrutiny. i'll hit a few of those. deferred action has been standard agency practice for many decades, and it's been expressly recognized by congress in several provisions and in many court decisions. furthermore, every lawyer knows that statutes are not the only source of law.

the most explicit legal authority for deferred action but not the only authority is in the formal agency regulations which have authorized since the earliest days of the reagan administration. these regulations, by the way, were adopted through notice and comment procedures and they do have the force of law. none of these laws, not one of them, says or even remotely applies that deferred action is per se, illegal when the number of recipients is large. the most vocal critics including two judges, misunderstood what deferred action is. they've confused with certain things you can apply if you get deferred action. deferred action siths self is one form of prosecutorial decision. the only -- the only thing affirmative about it is that agency is givings the person a piece of paper letting them know that is the case. every immigration scholar and practitioner knows that deferred action can be revoked at any time for any reason and the government can bring

removal proceedings at any time contrary to what my friend, professor foley said. this doesn't say a person is deportable or not deportable or gives them some kind of status. that's not trufmente it's true that existing laws allows deferred action recipients to apply for work permits and if they're granted social security cards. but the executive actions don't touch any of those laws. my feeling if you object to them then by all means argue for challenging them. there's nothing wrong for deferred action or for the particular use of it. importantly, also, daca and dapa applications -- >> mr. chairman -- >> we ask the witness to speak into the microphone, please. >> i'm sorry. >> put a little closer to you. >> sure. daca and dapa applications do not create binding rules or create substantive rights or statuses. the secretary's memo says this

explicitly. they are discretionary, both on paper and in natural practice. as for the latter, i hope to expand on that subject during the question period. finally, there have been some mellow dramatic claims that if visa executive actions are legal why there won't be limits to what future president ks do. my written statement shows four realistic limits. i have time now just to whiz through them. but in a nutshell, one the president cannot simply refuse to spend the resources congress has appropriated for enforcement. as president nixon famously discovered. but that's not a problem here because president obama has spent every penny congress has given him for immigration enforcement and he's used it to remove two million people. nothing in these executive actions will prevent him from continuing to do the same. two, the governing statutes impose limits. they will generally indicate how broad the executive discretion is in a particular

area. in this case, congress has given the secretary of homeland security especially broad responsibility for, and i quote, establishing national immigration enforcement, policies and priorities unquote. now, nobody claims that power is limitless. it is, of course subject to any specific statutory constraints but to date none of the critics have identified any specific statutory provisions that they can creditably say daca or dapa violate. three, the particular priorities can't be arbitrary or capricious. these particular executive actions set three priorities -- national security, public safety and border security. i doubt many would say those are irrational. and fourth and finally, even if the priorities are rational, they can't conflict with any enforcement priorities that congress has specifically mandated. but here it's just the opposite. congress has expressly mandated exactly these very same three priorities. so there are serious limits and these actions fully respect

them. thank you very much, again, for the opportunity to testify. >> thank you professor. i'll start the round of questioning and i'll quebec myself and i'll start with the question for you, professor legomsky. you state in your testimony that quote, the administration's recent executive actions do not even approach an advocation of its statutory responsibility. what in your view would the administration have to do to advocate its statutory responsibility? would granting lawful citizenship to 11 million be enough? >> yes. >> would say nine million, would that exceed it? >> the answer to that would depend on an empirical question. the question is would the president spend substantial resources that congress has provide. >> let's remember that president, when you talk about deportation, the president cants people for deportation in

previous -- that previous administrations did not count because they turned them back to the border. so about 2/3 of the people who are, quote deported, under the president's two million figure you cited are -- were not counted in previous administrations because they weren't put through that process. but be that as it may, you're saying that if the president blows through all the money in a way that uses it all up, whatever that may #is, that's the number of people he can give not only deferred action to but also employment authorization and social security benefits and earned income tax credit and legal presence in the united states? >> like i said a moment ago that's one of four different pliments but the answer is yes, the president must spend the resources congress has provided. >> as long as he does that, if that meets the number, if he spends it all on 100,000 people which is the number of actual deportations that occurred last year, 102,000

then he can give deferred action to the other 10.9 million people who are unlawfully present in the united states, that's your answer? >> no, it is not, mr. goodlatte. i think for the third time, i think there are other limits as well. and they include not only spending the money, making sure it's in terms of the statute, making sure the priorities are rational making sure the priorities are compatible which congress has specifically mandated and so on. it would depend on all of those things. >> let me just ask our other penalists, attorney general axality, would you respond to the president having this massive discretion? >> zooming out congress has been debating this for many, many years and in this particular case this path was not -- specifically not voted on by congress so by president

obama's own words many times over again before he did this, this is just not a power that our institutional system contemplated. i believe if five million ok then why isn't six million and why isn't seven million? if two years isn't ok then why not three? it seems pretty clear that this -- by his own words has stepped over and once you add the benefits that are included, there's just no justification this fits under prosecutorial discretion. >> you and 25 other states' attorneys general, including some governors in some states, have broad -- brought action in the district court of texas. do you agree with what judge hason said in his -- hannon said in that case, the department of homeland security cannot -- ignores the dictates

of congress but thwarts them. they are not just rewriting the laws, he's creating them from scratch. >> you know, we believe, as the three claims that have been made that the constitution has been violated under the take care clause. the administrative procedures act has been -- as judge hannon been thwarted, he didn't ultimately decide that for the sake of this preliminary injunction. he reserved that as well as the constitutional issues for the future. but the states certainly still believe in all three case the president has failed. >> let me afford that opportunity for professor blackmon and professor foley. >> dapa didn't quite go far enough and it's an important reason why. november 25 blog post, professor legomsky said, why didn't it apply to the parents of the dreamers? i think this raises a very important point. one of the professors signed

that letter saying the president didn't go far enough. so even the d.o. gmplet j.'s perception didn't go far enough. the reason they didn't go far enough because there had to be a relationship to an apparent group that congress preferred. daca was people without any legal status. dapa is the parents of u.s. citizens. one important point is parents of u.s. citizens between age 21 years can petition for a visa followed by a 10-year bar. parents of lawfully permanent residents can never get visa through their children. so this is a case where the policies favoring people who have not been class as congress preferred. >> professor foley. >> yeah. i would just say, it seems patent to me both daca and dapa are categorycal exemptions from law and -- categorycal exemptions from law. just look to president obama's own words when he announced dapa publicly in november of 2014. he said in a televised speech before the nation, all i'm

saying is we are not going to deport you. i think that speaks volumes. the other thing i would say with regard to darkse just look at the numbers. we have two years of experience with daca at this point, and the latest numbers as of the end of 2014 show that 97% of daca applications have been approved bit administration and in a letter from director leon rodriguez to senator grassley not too long ago he admitted that reasons why the 3% have been rejected is because they're not filling out the paperwork properly or attaching the right check for the processing fee. that to me sounds like if you meet the criteria that's been unilaterally established by this president you'll get an exemption from deportation and that's not what the i.n.a. declares. >> thank you. the chair recognizes the gentleman from michigan, mr. conyers, for five minutes. >> thank you, mr. chairman. professor legomsky, could you

respond to the question that has been posed by the chairman? >> i'll get it right this time. first of all, the figure is 95%, not 97%. professor foley's numbers are quite old and the current u.s. website has laid this out in detail for several months now. we can speak later, if you wish, about whether even 95% is too high. it's actually 95%. but second i think with respect -- confused denials with rejections. when you were speaking about people losing because they hadn't signed the form or checked the submitted fee, there are rejections, more than 40,000 of more. in addition, there are 38,000 denials on the merits. i think it would come as quite a surprise to some folks that learn the decision is being rubber stamped. >> thank you. let me ask you this, in your opinion, do the executive actions taken by the administration both daca and

dapa alleviate the need for congress to pass broad immigration reform measures? >> thank you congressman. i would say the answer is no. as the president himself has made clear on many occasions, he can't do what congress can do. only congress can create an immigration status. and the path to green card and eventually citizenship. all he's done is deferred action is to say ok, temporary reprieve from removal. we'll make you eligible to apply for a work permit and if it's granted then you can apply for a social security card. but that doesn't approach a green card which would give you the right to remain permanent, the right to naturalize, the right to bring in many of your family members and so on. deferred action doesn't do any of those things. >> thank you. let me ask you about the texas litigation. judge hannon joined the

deferred action program because he believed the applications were not being adjudicated on a case-by-case basis. and concluded that this was not happening in the daca context. do you think that that is a reasonable way to approach the decision in that case? >> thank you. i'm glad to have a chance to answer that question because it really lies at the basis of the a.p.a. denial, even the constitutional claim. judge hannon had no support in terms of evidence in the record that that was true. the starting point of the secretary's memo, it explicitly says repeatedly, you must engage in individualized case-by-case determination and that it also specifically says that even if the threshold criteria are met, you still need to exercise discretion. furthermore, there's a lot of discretion being exercised just

in determining whether the threshold criteria have been met. for example, to figure out whether somebody is a threat to public safety is not just a question of fact it's also an opinion as to how much of a threat a person has to be before we will deny it and so forth. so what the critics are really reduced to having to argue in effect is that this uscis work force is going to how systematically disobey the secretary's clear explicit instructions. there's not one shred in the record to support that accusations. >> now, does the -- are the president's critics correct that when they argue that the president then himself doesn't believe daca and dapa are legal ? has he contradicted himself somewhere along the lines? >> i don't want my answer to sound disrespectful but that has been one of the most irritating objections i've been hearing along the way. i know that it makes for good

political theater to say the president has contradicted himself. when you actually look at the statements the president has made which is one exception, almost all of them has been grand general statements about how i have to obey the law, i can't suspend all deportations. of course he's not done. and so forth. he recognizes that there are limits on his discretion and obviously he believes that daca and dapa do not exceed those limits. as do the vast majority of experts in the field. the one exception i have to acknowledge is the unfortunate statement made in a spontaneous reaction to a heckler at one gathering when he said i took an action to change the law. i'm sure that president could go back and edit his comments and so many of us would love to do when we speak orally he'd realize he should have said i took an action to change the policy because that's a more accurate description what he did. to read global -- into that does seem to be misleading. >> thank you for the balance that you brought to this discussion and i yield back my

time. >> i thank the gentleman from michigan. the chair would now recognize the gentleman from virginia, mr. forbes. >> mr. chairman, thank you. and mr. legonsky, let's go back to your political theater remark because have been two lines on that political theater that our friends on the other side of the aisle have played over and over again for audiences around the country. one of them was kind of found in your testimony that -- your written testimony, although this administration is ok because they removed more immigrants illegal immigrants than any other administration. in fact, you state in here that they've removed, i think you said two million aliens, but isn't it really a little deceptive because aren't about half of those removals claimed by i.c.e., they actually originate because they're caught along the border? in fact, one of the articles pointed out, said this, the statistics are deceptive because obama explained that enhanced border security has led to border patrol agents arresting more people as they

cross into the country illegally. those people are quickly sent back to their countries but are counted as deported illegal immigrants, is that a fair statement? >> it's correct. >> let me -- i only have five minutes. we had sitting right where you're sitting right now the presidents of both the i.c.e. agents and the border agents who testified that they're the ones interviewing these people and that it's the president's policies that were causing more and more of these people coming across the border. isn't it really true if you're talking about political theater, that that is kind of for the president to say he's sending more people back that he's stopping at the border kind of like a fire chief justifying his right to commit arson because it helped him put out more fires? it just doesn't make sense to me. and then when you look at the other line they're using in their political theater it's this one -- well somehow the other if congress doesn't act and i determine, as president of the united states, that the law is broke and it just doesn't work, then all of a

sudden it shifts the constitutional power over to me. so attorney general laxalt, if i ask you, the president as -- congress, as i understand it has the authority to establish a uniform rule of naturalization, is there anything in the constitution that says if the congress doesn't want to act because they like where the policy is or even because they can't act that somehow that shifts the constitutional right over to the president and that he can take any actions that he otherwise couldn't have taken constitutionally? >> thank you mr. congressman. you know this is the crux of the argument and -- of the lawsuit and it is certainly one of my biggest concerns that has been so for many years going back probably to when i was a law student at georgetown. our constitution is eroding, and the executive branch continues to take more and more

power. i can't think of a more clear example of something that the constitution clearly says the congress is supposed to perform and as i said earlier, congress has debated this, the president did not get the policy he wanted now he's decided to do it. i'd like to read a quote in answering to professor legomsky. i don't mean to gang up on you here. as to your comment as that president, his multiple statements didn't in fact say he couldn't do this, a heckler told him that you have the power to stop deportations. and obama replied "actually, i don't. that's why we're here. what you need to know when i'm speaking, as president of the united states, and i come to this community is that if in fact i could solve all these problems without passing laws in congress, then i would do so. but we're a nation of a plus. that's part of our tradition. and so it's an easy way out to try to yell and pretend i can

do something by violating our laws. and what i'm proposing is harder path which is to use our democratic process to achieve the same goal that you want to achieve." this president knows that he can't do this. he knows that our system did not allow him to take these extra steps. there is no question as judge hannon said in his opinion, there is a wide berth for prosecutorial discretion. i don't think you're going to get a lot of argument about that. but this goes so much further than any prosecutorial discretion that's ever been exerted. if this was allowed then congress' role in this entire field is advocate -- absent indicated. why would congress take year after year to debate these issues if a president is able to take a scope we've never seen before and in addition add benefits on top of simply deciding to not deport?

we saw that kind of sen tax when he said if you like your insurance you can keep them. my time's out, mr. chairman. i yield back. >> i thank the gentleman from virginia. the chair will now recognize the gentleman from new york, mr. nadler. >> thank you. i must begin by saying i'm surprise to hear the attorney general of a great state confusing political statements with legal statements. all the quotes from the president are interesting in a political debate and political discussion. they're not interesting in terms of what his powers actually are. his opinions frankly, in a political context at all. what's interesting -- what's relevant, as the attorney general should know, as everyone here should no, what the laws, the president's are, the court decisions are. not anybody's political statement in any context. let me also say -- let me ask professor legomsky, we've heard

that president's exercise of discretion since its categorical, is somehow different and that he's establishing categories of people to when he's giving rights that congress hasn't chosen to give. essentially that's the gravity of what we're being told, i think. i think rather -- please comment on this -- that that's untrue. the president is exercising discretion or granting deferred action to certain people. he can choose. the arizona -- supreme court said it. congress has said it. he can choose to do that by group, by category. in fact, it would be difficult -- i mean, if the president came out with a list and said, the following two million people, by name, are granted deferred action, we would think that's sort of ridiculous. although i don't think anybody would question his authority to do that. by doing it by category, i don't think he changes that. and please comment on the fact that he's not invading

congress' prerogative. this deferred action can be revoked at any time, number one. and confers no permanent benefits, even if it's been stated repeatedly they get -- these people get benefits, they may get a social security card. my understanding is they don't get benefits. can you comment on those two points? >> sure. i think everything you just said is absolutely correct. two things on the discretion issue. first of all, i do agree that there's really no law out there that says the president couldn't grant deferred action on the basis of a class-based discretionary judgment if he wanted to do so. we don't have to reach that issue here, however, because the president didn't even do that he did provide specifically -- or the secretary did -- for individualized discretion. i want to add this is the way agencies normally behave and it's very sensible. you want the agency to provide some generallyized guidance to its -- generalized guidance to its officers how to exercise it because you want political accountability to rest with the leaders.

secondly, you want this information to be transparent because it's important. and thirdly, the officers on the ground need to know what to do. and fourth, we want some reasonable degree of consistency. to the extent possible you don't want which officer you happen to encounter or which prosecutor's desk your file happens to land on. and in this particular case, the evidence in the record choice in fact these case-by-case evaluations are being made. >> thank you very much. before my next question, i'd like to comment on some of what has been said in the dialogue with mr. forbes and some others. the decision to formally remove border crossers rather than to aturn them was a strategic choice first made by president bush in order to disincentivize future illegal entries. a formal removal creates future bars to admission. period. would you comment on that? >> sure. i think border apprehensions and priorities makes sense both for the reason you gave,

congressman. and for another important practical reason. it's just smart strategy. it's a lot smarter to stop a person at the border than it is to divert resources from the border let people in and try to chase them down years later. >> thank you. many of the critics of the deferred action program complain they go beyond nonenforcement of immigration laws and instead provide a lawful status to people who are previously in unlawful status is that correct? >> no. their status remains unlawful. they do have something called unlawful presence. which has a very specific meaning for one particular provision but their status is -- >> still unlawful. finally, critics of the president's actions suggest they are unprecedented and act these are nofble to the federal courts. -- novel to the federal courts. hasn't the supreme court spoken to the extent which the administration has authority to exercise prosecutorial discretion and whether granting deferred action is an appropriate form of that discretion? >> yes. they've done that in a couple of cases. as have many of the lower

courts. one supreme court decision specifically recognized deferred action by name. the facts were different but the takeaway was the same. the president has this power. >> so finally, what about what the president has done aside from the fact of his name, perhaps his party and the poll fix of immigration is different than what previous presidents have done? >> i don't believe it is different. all fact situations are different in some sense but they're not meaningfully different. slightly different form was used in previous cases but the facts of the -- fraction of the undocumented population is roughly the same. in all other respects -- the one common denominator in all of these cases, presidents have used their powers to relieve noncitizens from -- to provide temporary reprieve for removal, temporary work, to categories of undocumented immigrants and

that's not unprecedented at all. >> thank you very much. my time has expired. >> thank the gentleman from new york. the chair would now recognize the gentleman from arizona, mr. franks. >> well, thank you, mr. chairman. mr. chairman it's often said that when human rights and human laws are in human hands that men lose their freedom. professor foley, i sometimes am entertained by reading from the federalist papers to law professors like yourself and i am not an attorney so it just gives me a little thrill, you understand. but in madison's statement in federalist number 47, he stated that the accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many and whether her redtory self-appointed or elected, may justly be pronounced the very definition of tirney. -- tyranny. the framers of the constitution understood that the accumulation of powers and tyranny were sprayable. and they reject --

unseparateable. and they rejected to dispense with the enforcement of the laws. and that of course, in their mind was the province of congress. so my question to you is, do you believe the president's recent actions export with the framers' conclusions and is president obama refusing to adhere to the take care clause in an attempt to evade the will of congress and was he acting constitutionally when did he that? >> congressman franks, you ask a very sail yant question. -- salient question. absolutely the president here is violating the take care clause because his duty, under the constitution, again is to see to it that laws are faithfully executed. so even if the laws are completely broken and everybody on both sides of the aisle agree it's broken, the president doesn't have the constitutional power to fix it. if it's going to be fixed it has to be fixed by congress and congress alone. i think the framers would be

rolling over in their graves if they knew what this president was doing. and let me just address prosecutorial discretion for a moment, if i may. one of the hypotheticals that says sheriff for example, can decide that he's only going to pull over speeders who go five miles per hour or more over the speed limit and let everybody else go, and that's what this president is doing. there's no difference. there's a world of difference between those two things. what that president is doing in that hypothetical is prosecutorial discretion. but that's not what president obama is doing by these actions. to be analogous what president obama is doing here, that sheriff would have to first of all publicly pronounce to the world that he's not going to pull over the speeders despite the fact that law says they're speeders. he would have to say -- and if i do pull anybody over, i'm only going to give them a fine of a dollar even though the statute says that it's $100 or

more fine. and then maybe also when i decide to pull them over i'll give them a gift card from best buy. i'll confer benefits upon them. that's what this president is doing and that's clearly not prosecutorial discretion. >> i'm not sure i should ask any more questions at that point. but professor blackman, do you agree with the comments basically? >> oh, absolutely. and as i noted in my opening remarks, in federalist 51, madison wrote, ambition must be made to counteract ambition. the president's ambitious. congress sam beneficiaries. the president wants something, congress wants something. the only way to prevent tyranny, to prevent -- is both of them butt their heads. in many respects. the gridlock is a signal to that. people say oh, washington's gridlocked. the people voted for you sent you here with certain positions and it's very much the case today people have a very stark opinion on issues. now while it's regrettable this congress hasn't been able to reform it's not a license to

extend your power. as justice scalia noted, gridlock is a feature, not above our constitutional order. similarly justice breyer said these are political problems, not constitutional proshes. the point i'd like to stress, the mere thing that washington is gridlock doesn't him something. powers over discretion, but the next paragraph says, but the case may turn, quote, on the acquiesce of an individual case. it says in the opinion, justice kennedy, the equities of an individual case. this is one on a case-by-case basis. thank you. >> professor foaly let me quickly expand on one other thing you mentioned. the federal district court in texas made this distinction between the federal government simply not enforcing immigration laws on removal of an individual and taking the next step of actually providing lucrative benefits to unlawful aliens and that seems to be an incredibly stark precedent here. could you expand on that a little bit? >> oh, absolutely.

i mean, the benefits is the classic example of why you don't want to start going down this road constitutionally with the president. because think about what he's doing. he's first of all publicly announcing to everyone that even though the law says you shall be deportable you're no longer deportable. and now i'm going to give you this remedy called deferred action that congress has blessed in certain instances but not blessed for this certain population. and then once he makes those moves, then he confers all these benefits upon this population. i mean, that is classic boot strapping. and if the president can make the first two moves, then you know, why not just boot strap and add the other move which is the confederal of benefits? -- conferal of benefits? if the constitutional powers include anything it's not just naturalization but it's the power of the purse and these instances have -- the states have standing to sue him. >> the time of the gentleman

has expired. the chair recognizes the gentlewoman from california, ms. lofgren, for for five minutes. >> thank you very much, mr. chairman. i'd ask unanimous consent to enter into the record five statements from the following organizations explaining the legal authority for the president's actions. from the constitutional accountability center, the asian american advancing >> american immigration council, national council of la raza and the national council of asian pacific americans. >> without objection, they will be made part of the record. >> thank you. professor legomsky, i want to say publicly, i've been in congress for 20 years, i've read a lot of testimony at many hearings over the years. your testimony is the singular best most concise logical testimony i have ever read in my 20 years in congress. and i thank you very much for your service in that way. i would like to ask you just a few questions. in professor foley, in her testimony indicates that the

undocumented immigrants who are covered by daca and dapa are, quote, no longer deportable, unquote, and that according to the office of legal council, quote, illegal immigrants who fall outside these three priorities are not to be deported at all, do you agree with that and if not why not? >> no, that statement is not true. i'm not sure where professor foley gets the authority -- of course, still deportable. the secretary has made clear deferred action could be revoked at any time. there's nothing to prevent the administration from initiating removal proceedings at any time. i'm not sure what the basis would be for that assumption. may i also -- neglectful in saying thank you so much for those generous words which are too generous. >> in the reno case justice scalia had a key holding. congress had made immune from

judicial review any action or decision to, quote, commence proceedings, adjudicate cases or execute removal orders and went on to say, at each stage, the executive has discretion to abandon the endeavor and at the time the hour was enacted i.n. crmplet s. had been engaged in a regular practice which has become known as deferred action of exercising that discretion for humanitarian reasons or simply for its own convenience. professor foley in her written testimony i think tries to diminish the significance of that case to distinguish that says the court merely acknowledged that they didn't want federal courts to get tied up in adjudicating discretion lawsuits. do you agree with that and if not why not? >> i think professor foley

makes a fair point in noting that case did involve a denial of relief rather than a grant of relief. the broad takeaway from the case is evident from the court's language where it went out of its way to say this discretion extends in the decision rather to adjudicate cases, how to adjudicate cases and whether to execute removal orders. so the facts might be slightly different. i see no basis in the opinion for distinguishing it based solely on the facts. >> there's been a lot of discussion about how dapa and daca grants additional benefits. but it is my understanding that it simply defers action and pursuant to section 274-a of the immigration and nationality act which provides that employment may be authorized either by the act or by the attorney general and acfr-274-a.12 provides that an alien who's been granted

deferred action an act of administrative convenience for the government may apply for authorization if there's an economic necessity which must be proven. is it your position that it's only the statutory basis that's being exercised following a grant of deferred action, or does the executive action give some kind of benefit directly? >> yes. i think it's a little bit of both. i would distinguish two kinds of so-called benefits. first of all, there's the benefit of simply receiving a piece of paper in which the government tells you we're deferring action in your case. people can disagree on the policy of that. there are pros and cons of telling the people but i've never seen anybody cite a law that says it's illegal to tell a person we are not going to proceed against you. the other benefits and the ones you've been describing now are, as you point out, specifically authorized by statute and even more specifically authorized by the regulations. they've been enforced since the early 1980's. again, they do have the force of law and they specifically

say if you received deferred action you are eligible to apply for a work permit. >> we appropriate money every year that allows for the removal of roughly 7% of those who are in the country in an undocumented status. it appears to me -- the affidavitted submitted to the judge in -- the affidavit submitted to the judge in texas saying having a piece of paper, to note the priority would be very helpful to them because the costs for removal is not at the stop. it's the detention the court processes, there's a lot of costs that go into that and knowing that this person was not the priority at the beginning would be helpful to the agency before costs are incurred. do you think that without having these priorities we're going to end up having to say that the nanny is -- who is caught on the street is as high

a priority as a drug dealer or gang member? >> i think that would be the logical result. it would be up to each individual police officer to decide what do i think my agency's priorities ought to be. and may i just add, in addition to the benefit you just described, namely helping i.c.e. sift out low priorities so they can focus on the high priorities, in addition, uscis is collecting a lot of very useful law enforcement data that can be shared with these other enforcement agencies and of course all of that is being paid for by the requesters themselves not by the taxpayer. >> my time has expired, mr. chairman. i yield back. >> i thank the gentlelady from california. the chair recognizes the gentleman from texas, judge gohmert. >> thank you, mr. chairman. thank you to the witnesses that are here today. want to direct the first question to our two law professors. did both of you read the 123-page opinion by judge hannon? >> yes. >> yes.

>> ok. >> i got it here myself. for full disclosure andy was a classmate in law school. he was one of the best and brightest. that's why he went with one of the best firms in the country in houston. and why president bush nominated him. he's a brilliant guy. have you also read the response that has been fired by d.o.j.? >> yes. >> ok. i was noticing in page 10 of the response where they're saying the government will suffer irrefutable harm absent a stay and in the very next sentence they say that injunction the judge granted blocks d.h.s. from exercising its authority conferred by congress and it's congress

that's trying to stop them from exercising the authority, not by executive order as the judge says, but as a good monarch would do, the president spoke law into existence and then the secretary of homeland security ran and put it into a memo and so i'm wondering if a law student in response as a question -- given a question, here's your exam respond to the 123-page opinion of judge hannon and they came back and said irrepairable harm because the injunction will prevent us from doing the job that congress conferred on us, what would be your response as law professors to that answer? >> i guess my first response would be again, boot strapping argument. f, right? because what's happening here

is that they're saying they're going to suffer harm because they're prevented from doing they think they have the authority do. of course the $6 million question is, do they have the authority to do what they're trying to do? and that is -- it's got to be no. the answer has to be nobody. despite professor's legomsky saying the four criteria, with respect, they don't provide a meaningful limiting principle. if this president can do that -- this, future presidents can unilaterally suspend for entire categories of people whom they prefer for some political reason operation of various laws, environmental laws, labor laws, tax laws and on and on and on. and that clearly upsets the constitutional balance. that's not faith execution of the law. >> as i add, the ranking member was correct. this was not a constitutional decision. the decision was on the administrative procedures act. i thill judge hannon showed his

hand -- texas -- he suggested very clearly and says the president should take care of the law and be faithfully executed. this tracks the heckler v. cheney. judge hannon's opinion shows why. one aspect which hasn't been appreciated, we need notice of comment. we need rulemaking. how is this program working? we don't exactly know how this policy works. in my research a checklist used by d.h.s. which has no other box. the only way to grant dapa is by checking off a box. the professor admitted in his testimony there are different types being used. do we want to know which ones? no. we need to show the american people, how is this working, then we can go to work. there is one aspect, we can learn what this is doing. we're learning this now after the memo has been released. had texas not filed a lawsuit when it did, this policy would

be in effect and no opportunity to challenge it. >> my time's about to expire. this is an incredible response in how poorly done it is in my mind. bottom page 10 it says for what reasons long recognized as valid the responsibility for regulating the relationship between the united states and our alien visitors have committed to the political branches of the federal government as such relimb near injunction causes irreparable harm. this cite this belongs to congress and then come back and cisif you leave it to congress it causes the executive branch irreparable harm. these >> you can continue to watch this hearing online at c-span.org. the u.s. house gaveling in momentarily and certainly the issue of the president's orders on executive action part of the discussion that the house republican leaders are considering, as the senate has

separated the two measures now. the republican leaders -- republicans met this morning and boehner -- speaker john boehner told reporters, i'm waiting for the senate to act, referring to the department of homeland security spending measure. earlier in the week, the majority leader in the senate, mitch mcconnell had separated the two by looking for a clean bill on homeland security spending and also a measure that would block the immigration orders that president obama has issued in 2014. still unclear as to how -- as to how they will move forward with homeland security spending, set to expire, the current measure set to expire at the end of the week. well, as we mention, the house is gaveling in momentarily. education is the topic today. two bills. one dealing with the expanding the 529 education savings program. another would begin work on authorizing the k-12 education programs that includes a number of changes to the current no child left behind