pro efficient in math 74% -- maybe i need to have a little math -- only 38% of those high school seniors can read at grade level. we have a problem and we need to address that problem. we heard that a lot of talk about how -- where title 1 funds go and portability of public schools, and it's a question i understand and we believe it's fair if you are eligible for title 1 funds you ought to get those funds. there's a disagreement. i think that the children, if they're eligible, if they're in poverty, that they ought to get their share of title 1 funds. one of the things we didn't talk much about today as we talk about the problems out there, we know that in some areas of the country, you have children trapped in absolutely failing

schools, where less than half of the kids that graduate. and those who graduate are nowhere near ready to go to college or go to work. we have seen across the state and across the country and in most states, charter schools public charter schools popping up. and giving parents hope, giving them a chance to get those kids out of failing schools. i said the other day in the rules committee, because it was so moving to me, i went to a charter school in north minneapolis, 430 kids in that school, their parents are delighted with the education they're getting now and thrilled to have gotten their kids out of failing schools and when i asked the principal and founder of the school if she could take more kids she said no, this is the right size for this school. they would like to replicate this school and that's what this bill allows and how successful is it? there are 1,000 kids 1,000 kids

on the witnessing list to get into that charter schools because parents want to get out of failing schools. this bill allows this to happen. it comes down to, who do you trust? parents or local governments? we want to put the control in quite a debate on the edge -- quite a debate on the education program. the measure would eliminate no child left behind. a final vote is expected by the end of the week. the white house is expected to veto calling it insignificant. another bill of dealing with education has to today. -- past today -- passed today. there could be legislation to fund in the homeland security.

coming up tomorrow on our companion network c-span3 the sec considers -- the sec considers -- the fcc considers that neutrality. we will hear remarks from governor scott walker of wisconsin. as well as former alaskan governor sarah halen. it will -- sarah palin. [video clip]

>> it was very clear to me i still have a problem with public trust. use of force is down 46%. the lawsuits are down. shootings are dramatically down, we are moving in a positive way. people in the community say they do not believe it. on c-span's q&a. [video clip] >> this hearing continues as negotiations continue off the floor. this is three hours 10 minutes.

>> good morning, we welcome everyone to this morning's hearing on the constitutionality on the immigration executive order. >> last november, president obama announced one of the biggest immigration grabs -- almost 5 million illegal immigratnts would be granted access to the social security tax fund and the earned income tax credit.

he stated over 20 times in the past that he did not have the constitutionality to do that. as of the "washington post" and their fact checked noted. president obama admitted that he just took an action to change the law. the constitution is also clear that it is the president's possibility to enforce the constitution. to take care that the laws be faithfully instituted. the integrity of our immigration law -- it would cause them irreparable harm. they challenged his action in texas. the court has granted a temporary injunction, halting

the administration's plan. the immigration is rewriting the law from scratch. president obama has justified his actions under prosecutorial discretion. the authority as to whether or not to enforce -- telling entire classes of millions of unlawful aliens that they face no possibility of being removed is not prosecutorial discretion. the president relies on a memo prepared by the justice department council to attempt to justify his action as constitutional. that very memo finds that the discretion is not unlimited. limits are both implicit in an

fundamental to the constitution's allocation between the two political branches. the executive cannot attempt to effectively rewrite the laws. the memo quotes the supreme court in stating that the executive branch cannot consciously and expressly adopt a general policy that is so extreme as to amount to an abdication of its step tutorial responsibilities. the federal court in texas agrees. they found the deferred action does not simply constitute in action. they are doing nothing against a class of individuals.

deferred action does not represent mere inadequacy, it is complete abdication. the court points out that the president's inaction is in fact granting affirmative benefits to the alien's as i described earlier. in no way can the president's actions be a justified use of discretion -- they are a clear violation of his responsibility to faithfully execute the laws. he claims his actions are nothing new. it is true that previous presidents of both parties have provided immigration relief. most often the actions were based upon emergencies in foreign countries. for example, chinese students were protected after tiananmen

square. or george h.w. bush's grant of voluntary departure was in fact granted by the department as it existed at the time. without any crisis in a 40 country to justify it, -- in a foreign country to justify it, president obama has exceeded his authority. no administration has abused it like obama's has. the administration is driving for steam ahead to a constitutional crisis -- tilting the scale in his favor. threatening to unravel checks and balances. this administration has entered around of rewriting laws. the house of representatives has

taken decisive action to protect the constitution. we have asked the department of homeland security regulations bill -- including this grant of action. it is being filibustered in the senate, even as funds are set to run out. not allowing the bill to be debated, those citizens that have chosen obstruction are threatening access to funds designed to keep america safe. they are denying the american people a fair debate on this vital issue of whether congress needs to take action to protect our constitutional liberties. we hope they rolled relent in time. i look forward to today's hearing. it is now my pleasure to represent the gentleman from

michigan. good luck to our witnesses. [video clip] in three days, the department of homeland security will run out of money. tens of thousands of federal government workers will be furloughed. around 200 house and workers -- 200,000 workers will be out of a paycheck. they will be told to conduct investigations and secure our ports, but they will not be paid. department of homeland security has low morale. that has been a problem since the department's creation a decade ago. this won't help. i'm sure those workers will do their job -- which is more than

i can say for the legislative branch of our federal government. why do i say that? because congress has certain responsibilities. some ofare, located, some are less complicated. first, consider the most basic obligation we have. it is our responsibility to pass bills to fund the government. if we do not do our job, the government shuts down. congressional republicans got their wish in october, 2013, and shut the government down for more than two weeks. now the majority here again is set on a collision course this. time they will shut down the

department of homeland security because they refuse to pass a clean spending bill because they want to block the administration's executive actions on immigration. keep in mind that the spending bill we are talking about was negotiated between republicans and democrats in the house and the senate. truth be told there are aspects of that bill that i disagree with. i strongly oppose the detention of -- believe it is wasteful and unjust to include that language in the appropriations bill. but i also understand the importance of funding the department of homeland security and the need to keep our nation safe. second, congress is also failing

to do its job because it is ultimately our responsibility to fix our broken immigration system. instead of doing that work, we are holding hearing after hearing to vilify the president for taking important and commonsense steps to prioritize the deportation of felons before families. the limited legislation that this committee has considered would make our immigration system even less efficient, less humane, and less able to meet the needs of american families and businesses. earlier this month we held two immigration subcommittee hearings on draft language for deportation only bills that

would separate families, strip protection from dreamers, destroy the agricultural industry and the millions of jobs that depend on it. and return vulnerable children to face persecution and violence with no meaningful due process. finally, i want to note that the title of today's hearing demonstrates a glaring disrespect for the office of the presidency and for this institution's responsibility to conduct oversight that is rooted in fact rather than political presumption. the title of today's hearings is, the unconstitutionality of obama's executive actions on immigration. not president obama's executive

actions, but obama's executive actions. since when are we on such familiar terms with our commander in chief? i cannot recall a previous administration during which members of congress, from either side of the aisle, showed such a persistent disrespect for the office of the presidency. the title of this hearing is also interesting because it is a statement not a question. it just presumes that the administration's actions are unconstitutional, even though no court has found the actions unconstitutional. and there's -- there is strong legal authority and historical precedent supporting these policy decisions. so in closing, our current immigration system is not

working for american families businesses, or the economy. these problems require real legislative solutions. so i urge our colleagues, my colleagues on this committee to start doing the job that we were sent here to do. mr. chairman, i yield back the balance of my time. and thank you. >> the chair thanks the gentleman. it's now my pleasure to recognize the chairman of the judiciary subcommittee on immigration and border security, the gentleman from south carolina, mr. gowdy, for his opening statement. >> thank you, mr. chairman. mr. chairman the thread that holds the tapestry of our country together is respect for and adherence to the rule of law. the law is the greatest unifying and greatest equalizing force that we have in our culture. the law is what makes the richest person drive the precise same speed limit as the poorest person.

the law is what makes the richest person in this country pay his or her taxes on precisely the same day as the poorest person in this country. the law, mr. chairman, is symbolized by a blindfolded woman holding a set of scales and a sword. the law is both a shield and a sword, and it is the foundation upon which this republic stands. we think so highly of the law, mr. chairman, that in the oath of citizenship administered to those who pledge allegiance to this country, to their new country, it makes six different references to the law. so attempts to undermine the law via executive fiat, regardless of motivation, are detrimental to the foundation of a democracy. president obama after the november midterm elections, i hasten to add, announced one of the largest extra constitutional acts ever by a chief executive. he declared unilaterally almost five million undocumented aliens would receive deferred action under some newfangled definition

of prosecutorial discretion. moreover, in addition to using prosecutorial discretion, is a license to rewrite the law, he also conferred benefits on those same people. you may like the policy, you may wish the policy were the law but one person does not make law in a republic. if you enjoy a single person making law, you should investigate living in another country, because our framers did not give us nor have generations of our fellow citizens fought and served and sacrificed for a single person to make law in a unilateral way. so removing consequences for breaking the law is one thing. bestowing benefits such as work authorization and immigration benefits is another. the president himself recognizes his own inability to do this mr. chairman. more than 20 separate times he said he lacked the power to do what he ultimately did. in 2011 he said this, and i quote, the notion that i could

just suspend deportation through executive order, that's just not the case. he told us time and time again mr. chairman, that he was not a king. his position may have changed. but the constitution has not. and that document is clear and it is time tested and it is true and it says the congress passes laws and it is the responsibility of the chief executive to take care that those laws are faithfully enforced. the prosecutorial -- is that better, mr. court reporter? let me see where i was. his position may have changed. but the constitution has not.

prosecutorial discretion is real and actually valid, mr. chairman, but it is not a synonym for anarchy. as u.s. district court judge andrew hanon wrote, d.h.s. does have the discretion in the manner it chooses to express the will of congress. cannot ignore congress but actively thwart them. the constitution gives the president a lot of power, mr. chairman. he's the commander in chief, he nominates supreme court justice, he can veto legislation for any reason or no reason. he can fail to defend the constitutionality of a law. he has the power of pardon. he has a lot of power, mr. chairman. but what he cannot do is make law by himself. that is the responsibility of the congress. and if this president's unilateral extra constitutional acts not stopped, the future president, you may rest assured will expand that power of the executive branch thereby threatening the constitutional equilibrium.

the argument the previous administrations have acted outside constitutional boundaries holds no merit with me. the fact that other people make mistakes is not a license for this executive to do the same thing. mr. president, in conclusion, we live in a country where process matters. the end does not justify the means. no matter how good the intentions. when a police officer fails to check the right box on an application for a search warrant, the fruits of that search warrant are suppressed. when a police officer, even though he has the right suspect for the right crime, but he just fails to include one small part of those prophylactic miranda warnings, what happens? the statement is suppressed. even though you have the right person. even though you have the right crime. because we view process over the end. i'm going to say this and i'll finish. i'm going to say this to those who benefit from the president's policies. you may be willing to allow the end to just fight means in this

case. you may well like the fact that the president has abused prosecutorial discretion and conferred benefits in an unprecedented way. you may benefit from the president's failure to enforce the law today, but i'll make you this promise. there will come a day where you will cry out for the enforcement of the law. there will come a day where you long for the law to be the foundation of this republic. so you be careful what you do with the law today because if you weaken it today, you weaken it forever. with that i yield back. >> the chair thanks the gentleman for the very cogent remarks. it is now my pleasure to recognize the ranking member of the judiciary subcommittee on immigration and border security, the gentlewoman from california, ms. lofgren, for her opening statement. >> thank you, mr. chairman. the 113th congress is considered to have been one of the most do-nothing congresses in

history. the biggest symbol of the republican failure to govern was the unnecessary and irresponsible shut down that lasted from october 1 to october 16. federal employees were furloughed for a combined total of 6.6 million days, $2 billion was spent on payroll to these furloughed employees for work they were prevented from doing. the recovering economy took a hit, and millions of americans were denied access to programs and service that is they rely on. perhaps it's fitting then that the 113th congress ended with the so-called cromnibus, a spending bill that promised to yet again puts on the path of the government shut down. we are only two months in the 114th congress but it already seems like the republican majority in the house and senate is trying to outdo itself. for the past six weeks rather than proceed with the d.h.s. funding bill, the democrats and republicans in the house and senate agreed to last year

republican leaders in the house and senate have insisted that funding be contingent on a series of poison bill immigration riders demanded by the most extreme members and supported by all but a few. since the cromnibus was first passed, many republicans argued that the president acted unconstitutionally on november 20 when he and the secretary of homeland security announced a series of measures defined to bring a measure of sense to our broken immigration system. we have been told these measures cannot be permitted to take effect. last week, of course, a federal judge issued a preliminary injunction halting two of those measures -- the deferred action for parental accountability, and the expansion of the deferred action for childhood arrivals program. these efforts are designed to offer temporary protection from deportation to certain parents of u.s. citizens and lawful permanent residents and to dreamers with long ties to our country. the department of justice this week requested a stay of the injunction and noticed an appeal.

the matter's finally in the hands of the federal courts. the branch of the government that the constitution entrusts to settled disputes arising in the constitution and laws of the united states. some people, including some republicans in the house and senate, have speculated that a court injunction would convince republican leadership to stop holding the spending bill hostage. what we have seen over the past weeks, however, is that many republicans are even more determined to take us over a cliff and once more shut down the government. several points are worth noting. first, we continue to hear republicans minimize the impact of a shut down on national security by arguing that 85% of d.h.s. employees were deemed essential during the last government shutdown. i just can't understand how we in congress would take comfort at the idea of forcing border patrol agents to secure our borders, coast guard personnel to patrol the seas and i.c.e.

officers and agents to conduct law enforcement investigations and secure detention facilities without receiving their paycheck. it's unconscionable, really. further, it's bizarre that we will defund the e verify program, stop the immigration enforcement efforts, but at the same time because they are fee supported, the processing of immigration petitions will be unimpeded. so the effort stops immigration enforcement but it does nothing to actually stop the processing of immigration petitions. second, since we know the court has already temporarily halted implementation of daca, expanded daca, it's important to remember what other initiatives congressional republicans are trying to block as part of d.h.s. funding. they voted overwhelmingly to eliminate the daca program itself. stripping protections from more than 600,000 dream act kids and subjecting them once more to deportation.

they voted to prevent d.h.s. from implementing a new enforcement strategy along our southern border and creating three new law enforcement task forces. they voted to block d.h.s. and d.o.d. from working together to ensure that u.s. citizens who wish to enlist in the military would be able to do so notwithstanding immigration status of close relatives. they voted to stop d.h.s. from taking important steps to capitalize on the talents of entrepreneurs to help companies attract and retain highly skilled immigrants and promote citizenship. just yesterday, a final rule was issued extending work authorization to the spouses of certain h-1-b visa holders. if the appropriations bill passed by the house were to become law, uscif would have been prevent interested finalizing that rule. republicans don't talk about the fact that they are refusing to fund d.h.s. unless they block each of these efforts, but

that's what they voted to do. turning to today's hearing, i note that although the title of this hearing as has been mentioned, presumed that the president's executive actions are unconstitutional, no court, including the texas district court, that issued the preliminary injunction have found that these actions are unconstitutional. in fact, a challenge to the original daca program brought by the state of mississippi was thrown out of court for lack of standing. in a challenge to the administration's recent executive actions brought by maricopa county sheriff, was also dismissed for lack of standing. of course i'm disappointed by the court's ruling and i know millions of american families across the country are also greatly disappointed. still, i expect that both programs will be upheld as fully within the president's legal authority by appellate courts. i say this because there is ample legal and historical precedent supporting the

president's action. the supreme court has long recognized the administration's authority to exercise prosecutorial discretion when enforcing our immigration laws and specifically recognize that granting deferred action is a legitimate exercise of that authority. congress directed the secretary of homeland security to establish national enforcement priorities and policies, and empowered the secretary to performed acts that, quote, he deems necessary for carrying out his authority under the immigration and nationality act. every year congress gives the administration only enough money to apprehend, detain, and remove a fraction of the people in this country who are removable, and directs the department to prioritize the removal of people with criminal convictions based on the severity of the offense. the texas court ruling seems to turn on the fact that daca recipients may apply for work authorization and social

security cards, it fails to acknowledge that the legal authority for granting work authorization and social security cards is entirely distinct from the authority to grant deferred action. and in fact is statutorial. all those authorities long predated daca and congress has never taken action to limit that discretion. this is arguably the fourth hearing, mr. chairman, that we have held on the legal authority for the president's actions on immigration. the last two hearings -- >> the gentlewoman is advised she's now 2 1/2 minutes over. we all exceeded by a minute or so. >> i will then conclude by saying that the courts will ultimately decide whether the administration's programs can take effect. it is our responsibility to reform the law and it would be irresponsible of us to shut the government down. we should allow the courts to do their job and we should do our own. i yield back. >> the chair thanks the

gentlewoman. we welcome our distinguished panel today. if you would all rise i'll begin by swearing-in the witnesses. do you and each of you solemnly swear that the testimony you are about to give shall be the truth, the whole truth, and nothing but the truth, so help you god. thank you very much. let the record reflect that all the witnesses responded in the affirmative. adam paul currently serves as nevada's 33rd attorney general and is the youngest attorney general in the country. prior to becoming attorney general, he was in private practices in las vegas. the attorney general served in iraq at forward operating base camp victory where his team was in charge of more than 20,000 detainees. he has also served as a special assistant u.s. attorney as an assistant professor of law in the leadership ethics and the law department at the u.s. naval academy and as a special advisor to the undersecretary of state for arms control and

international security. attorney general laxalt graduated magna couple loud from georgetown university and georgetown university law center. professor josh blackman is an assistant professor at the south texas college of law specializing in constitutional law and the united states supreme court and is the author of "unprecedented the constitutional challenge to obamacare" and over a dozen other articles about constitutional law. professor blackman clerked for the honorable danny j. boggs of the u.s. court of appeals for the sixth circuit and honorable kim r. gibson of the u.s. district court for the western district of pennsylvania, and is also the founder and president of the harlan institute, which provides a stylized law school experience for high school classrooms and the founder of the internet's premiere supreme court fantasy league. professor blackman graduated magna couple loud from george

mason university law school and magna cum laud from penn state with b.s. in information sciences and technology. professor elizabeth price foley is a founding member and professor at florida international university college of law where she teaches constitutional law. prior to joining f.i.u., professor foley was a professor of law at michigan state university college of law and served as a law clerk to the honorable carolyn king of the united states court of appeals for the fifth circuit. professor foley is the author of multiple books on constitutional issues, including, "liberty for all, reclaiming individual privacy in a new era of public morality.” and presently serves on the editorial board of the cato supreme court review. professor foley graduated from the university of tennessee, college of law and holds a b.a. in history from emory university and l.l.m. from harvard law school. professor stephen h. legomsky is a university professor at

washington university school of law, focusing on u.s. comparative and international immigration and is the founding director of the law school's whitney r. harris world law institute, a center for instruction and research in international and comparative law. he recently returned from a two-year leave of absence serving as chief counsel of u.s. citizenship and immigration services. he is the co-author of "immigration and refugee law and policy” which has been a required text at 176 law schools since its inception. the professor graduated first in his class at the university of san diego, school of law and clerked for the u.s. court of appeals for the ninth circuit. your written statements will be entered into the record in their entirety, and i ask that you each summarize your testimony in five minutes or less to help you stay within that time limit, there is a timing white on your table. when the light switches from green to yellow, you have one

minute to conclude your testimony. when the light turns red, that's it. your time is up. please stop. attorney general laxalt, welcome, you may begin. >> mr. chairman, ranking member conyers, and members of the committee, my name is adam paul laxalt, attorney general of nevada. on behalf of nevada i thank you for the opportunity to testify today about the state's lawsuit challenging president obama's unilateral executive action granting deferred action to over four million people. i represent one of the 26 states that has sued the federal government. the state's lawsuit, while immigration is the substantive issue underlying the president's executive action, this lawsuit is not ultimately about immigration. rather it's about the president's attempt to change the law through unconstitutional executive action. like most of us, i am the descendent of immigrants. my ancestors came here in search of a better life. my grandfather, paul laxalt, was

the son of an immigration sheep herder. he rose to become the governor of nevada and united states senator. in our nation's history, similar stories have been repeated over and over. they are what we have come to know as the american dream. however, it's never been true that in order to sympathize with the plight of immigrants or to believe in the american dream one must reject our constitutional system. to borrow a phrase our president's fond of using, that is a false choice. in significant part it is our commitment to the rule of law and to our constitution that has drawn people to our shores across generations. before taking unilateral action, the president said the following. i am president, i am not the king. i cannot do these things just by myself. there's a limit to the discretion that i can show because i'm obliged to execute the law. i can't just make the laws up myself.

we can't ignore the law. the fact of the matter is there are laws on the books that i have to enforce. these are a series of comments the president made before this action. subsequently, on november 20 2014, after repeatedly acknowledging his duty to faithfully enforce the immigration laws passed by this body, and after emphasizing that he lacked the authority to unilaterally change those laws, president obama directed his secretary of homeland security to do just that and change the law. to quote the president himself, he said, i just took an action to change the law. that on november 25. in earlier statements by the president, a coalition of states brought suit in federal court to

enjoy the president's unilateral action. since the lawsuit was originally filed, the number of states challenging the president's action has grown to a majority of the 50 states. the states' lawsuit focuses on three areas. first, the constitution requires the president to take care that the laws be faithfully executed. during the korean war, president truman relying on the exigencies of war unilaterally seized the nation's steel mills. president truman justified unilateral action because congress refused to pass a statute authorizing his action. the supreme court held that truman's actions were unconstitutional. here, as judge hanon, the federal judge presiding over this case has observed, no statute gives the department of homeland security the discretion it is trying to exercise. quite the contrary, the president's executive order not only ignores the dictates of congress, but actively that thwarts them. for the same reason that truman's unilateral action in the steel seizure cases was held unconstitutional by the supreme court, we think president obama's unilateral action here is unconstitutional.

second, federal statutory law, namely administrative procedures act, similarly requires when an agency issues a substantive rule t. must be consistent with congress' clear statutory commands. under unambiguous federal statutory law, the department of homeland security here i quote judge hanon again, is tasked with the duty of removing illegal aliens. congress has provided that it shall do this. the word shall certainly deprives the d.h.s. of the right to do something that is clearly contrary to congress' intent. the president's plan of millions illegally present individuals be granted legal present work authorization, eligibility for state and federal benefits cannot be squared 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. and allow public comment before implementing the change. everyone agrees that was not done here. this was the third reason the states are altering -- arguing. the states issued a preliminary injunction of the dapa program. wine avoid a -- nevada law says i'm us secure interest of the state. this issue is not about immigration. it is not about politics, it is about the role of law and our constitutional system. it seeks to prevent legislation

ring prevented and usurped by fiat. it is more significant than any policy directive. that any political system at the time. thank you mr. chairman for allowing me to testify above this commission. [video clip] >> i understand your parents are here. >> my name is josh, i am a law professor at the south texas university. it imposes severe threats to the separation of powers. three points, first -- unprecedented exercise of the president's preferred action. second, it violates the duty.

the executive must enforce the laws. nonenforcement poses a threat to the role of law. the congress --congress has not acquiesced. the justice department claims that for previous sentences justify this. these claims are demonstrably false. in 1997, deferred action was granted under the violence against women act. it had artie been approved, but it was not available. it served as a temporary bridge -- second, in 2001, deferred action was granted for aliens under the trafficking laws.

lawful status was immediately available on the other side. third, in 2005, action was granted to foreign students who lost their the says following hurricane katrina. to enroll another college to gain success. in 2009, deferred action was granted to aliens widowed before the two-year. . where visa petitions have been filed. historically, deferred action acts as a temporary bridge -- from one to another. benefits arriving host deferred action. deferred action services serves as a tunnel, there is no visa --

no pot of gold on the other side of the rainbow. my second point is that it violates the duty to take care of the law. article two -- he he shall. first, the blueprint for top dapa turns discretion into a rubberstamp. it is an effort to bypass it, a transparent wanted that. according to previous cases like a mythical phoenix -- they rose from the ash of congressional defeat. congress voted down legislation. the president repeated over and over again that he could not act unilaterally in the precise manner he did.

it points to the violation of laws. third and finally while the president's actions cannot be sanctioned, i hasten to add, if upheld, democrats have much to lose here. republicans like when the government takes less action. today, democrats might approve. obamacare, not prosecute marijuana -- the situation could be very different if republicans enforce tax codes and environmental laws. in the words of james madison federalist, the only way to keep separation of powers in place -- is to keep ambition in place. the all-important task of safeguarding the judiciary, to

eliminate the dangers of nonenforcement, the congress must counteract. failure to do so may do bad things for congressional secrecy. the rule of law are destined to fail if the separation of powers fail. thank you very much, i will your questions. >> thank you. >> members of the committee -- thank you for the opportunity to testify against today. my criticism with the president's immigration accidents are based on legal process. not on political results. what shape 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 written a deadly -- repeatedly said he wants to fix our broken immigration system. what this means is that he is trying to fix our immigration law because immigration law is the only immigration system that we have. he thinks our immigration law is broken, and he believes that it is broken because it fails to exempt certain categories that he thinks deserve exemptions from deportation. and to whom he believes the law should grant benefits, such as work permits. fixing i law by unilaterally changing it, by granting exemptions and remedies that the law does not provide -- that is legislative. to be more precise, it is an amendment.

that is a 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 the law. when a president takes it upon himself the power to change a law he doesn't like, we hundred democracy -- we have instead a legislature of one. if congress does not oppose president obama's executive order, and will be writing its own institutional obituary. when congress fails to express disagreement, but courts tend to construe that as acquiescence or implied authorization. this is called category one in the youngstown steel seizure case. congress has to be careful here, it has a constitutional responsibility to vigorously protect.

president obama's immigration actions are unconstitutional for three separate and distinct reasons i elaborate in the statement. first, they alter the status of certain immigrants. magically transforming them from deportable to not deportable. secondly, they provide a remedy: deferred action that congress is not implicitly authorized. third, they confer benefits upon certain illegal immigrants that 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 action on immigration, it creates a bermuda triangle of unconstitutionality. a uniquely powerful

gravitational pull -- capable of events a rating article one's powers. all three of these aspects of the orders make it uniquely dangerous to the institution. i would like to highlight two points i elaborate on that bear special mission. first, by granting work permits to recipients, president obama's orders encourage employers to hire aliens over legal. that is because of the affordable health care act does not allow illegal immigrants to obtain tax credits when they buy qualifying health insurance. what happens is, if you hire more recipients, this lessons the employer's responsibility tax.

for more illegal immigrants, the fewer who are eligible to buy health insurance, and the few who are going to obtain a tax credit for doing so, the fewer employees you have. who are capable of triggering that tax. it means one important thing. president obama's immigration actions undermine the affordable health care act itself -- by providing insurance the of the workplace. granting work permits to recipients, president obama is undermining his own signature legislative achievement. second, the recipients are able to apply for advanced parole. they can get advance permission

to leave the country and come back quickly. without advanced parole, if you've enter illegally -- you have to stay out for a long time. usually 3-10 years before you can reenter. once a recipients reenters the country after being advanced parole, they are considered to be paroled into the country. under the statute, they can adjust legal status. they can do this as long as they qualify for a visa such as a employer-sponsored visa. what does this mean? it means for some recipients obtaining advanced parole will provide -- >> you have exceeded your time limit as well. > absolutely. they will have a pathway to citizenship. this is problematic because congress has the sole

power to do that. if just one person under dapa and daca is applying, we have a fundamental usurpation of congresses'power. >> thank you. >> for the privilege of testifying in this important hearing. i appreciate the reasonable minds that differ about policy decisions -- i want to respectfully share my opinion. that these actions are clearly within his legal authority -- that is not just my opinion. 135 immigration law scholars joined in a letter expressing their views that these actions are well within the legal authority of the executive branch. we are people who have spent

years and in some cases mine decades researching and writing immigration law -- we are familiar with what the statute allows. the president has multiple sources of legal authority for these actions. i have submitted a detailed written statement on each of them. i also identified every legal objection i can think of that the president and his critics offered. they withstand scrutiny. with limited time, i hit the key points and refer you to the statement. deferred action has been standard practice for many decades. expressly recognized by congress and many court decisions. every lawyer knows that statutes are not the only source of law. the most explicit legal authority, not the only one, is in the agency regulations that authorized things and the reagan administration.

these comments and procedures to have the force of law. not one of these laws even remotely implies that deferred action is per se illegal. the most vocal critics including judge hanon misunderstand. they confuse action itself with things you get when applying for it. it is one form of prosecutorial discretion, the decision not to prioritize someone's removal. the only thing affirmative about it is that the agency is giving a verse a paper letting them know. every immigration scholar knows it can be revoked any time for any reason. contrary to what my friends have said, there is nothing in any law that says it is deportable

or not affordable. simply not true. it is also true that deferred actions cannot apply for other things -- including social security cards. the executive actions do not touch any of those laws. my feeling is is if you object, argue for challenging them. there's nothing wrong with deferred action itself. importantly, also, the applications >> can we ask you to speak into the microphone? >> sorry. they do not create a substantive right. the memo says that exquisitely. their discretionary both on paper and in practice. i hope to expand on that during the question. there have been some

melodramatic claims that why there must not be any law for future presidents. my written statement has a divide for realistic limits. i have time now just to whiz through them, in a nutshell -- the president cannot simply refuse to spend the resources congress has appropriated. as president nixon discovered. that is not a problem here, because president obama has spent every penny congress has given him for immigration. he has used it to remove 2 million people. not that these actions will prevent him from doing the same. the governing sections on these limits -- they indicate how broad the discussion is in a particular area. in this case, congress has given the homeland security department -- to establish immigration enforcement, policy, and

priorities. nobody claims these powers are limitless. to any specific statutory claims. none of the critics have identified any the priorities cannot be arbitrary or capricious. national security, public safety, and border security. i doubt many would say those are irrational. even if the priorities are rational they cannot conflict with any endorsements are priorities congress has specifically mandated. here it is just the opposite. congress has expressly mandated the same three priorities. thank you very much again for the opportunity to testify. >> thank you, professor. i will start this round of

questioning and recognize myself. you state in your testimony that the administration's recent executive actions do not even approach an abdication of its statutory responsibilities. what in your view with the administration have to do to abdicate its statutory responsibility? what 9 million exceed it? >> the answer to that would depend on an imperial question. with the president still be substantially spending the resources that congress has provided every >> the president counts people for previous deportation that previous administrations did not count. about two thirds of the people who are deported under the president's 2 million figure

that you cited were not counted in previous administrations. they were not put to that process. he that as it may, you're saying if the president blows through all the money in a way that uses it all up, whatever that number is that's the number of people he can give not only deferred action to but also employment authorization and social security benefits and earned income tax credit. >> as i just said a moment ago the answer is yes the president must be in the resources congress has provided regret 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 then he can give deferred action to the other 10.9 million people.

that is your answer to >> no, it is not. for the third time, there were other limits as well and they include not only spending the money but making sure it is within the terms of the statute making sure the priorities are rational and compatible with those congress has specifically mandated and so on. it would depend on all those things. >> let me ask our other panelists, attorney general lack all, would you like to respond to that? -- general laxalt. >> congress has been debating this for many years. in this particular case this was not specifically voted on by congress. by president obama's on words many times over again before he did this, this is just not a power that our constitutional

system contemplated him having. if he does as mr. chairman was heading in this direction, if 5 million is ok, then why isn't x, and why isn't seven. and if two years is ok, then why isn't three. it seems pretty clear that by his own words -- once you at benefits that are included, there's just no justification this sits under prosecutorial discretion. >> let me follow up on it. you and other attorneys general have brought an action in the district court in tech and do you agree with what judgment hanna and in his opinion in that case? the department of homeland security cannot enact a program whereby not only ignores the dig dates of congress but actively asked to thwart them -- ignores the dictates of congress. >> we believe that the three

claims that have been made, that the constitution has been -- the administrative procedures act has been thwarted. he did not alternately decide that for this preliminary injunction. he reserved that an constitutional issues for the future. the state believed in all three cases the president has failed. >> i think implying that it did not go far enough, he wrote why did it not applied to the parents of the dreamers? many think the president did not go quite are enough. the reason why they did not go far enough -- one important

point is, parents of u.s. citizens [indiscernible] more importantly they can never get a visa through their children. this is a case where the policies favor people who have not applied to congress as preferred. >> it seems patent to me that they are both categorical exemptions from law and the professor said that is not the case. just look to president obama's on words when he announced it 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 violence. the other thing i would say is, just look at the numbers. we have two years of experience

at this point and the latest numbers say that 97% of applications have been approved by the administration and in a letter from director leon rodriguez to senator grassley not too long ago, he admitted that the reasons why the 3% have been rejected is because they are not filling out the paperwork properly or attaching the right checks for the processing fee. to me that sounds like it meets the criteria that has been unilaterally established by this president, you will get an exemption from deportation and that's not what the ina declares. >> thank you mr. chairman. professor, could you respond to the question that has been posed by the chairman? >> i will get it right this time. first of all, the figures 95%

not 97%. the current website has laid this out in detail for several months now. wiccans big later if you wish about whether even 95% is to -- we can speak later about whether even 95% is too high. when you are speaking about people losing because they had not signed the form or submitted the feet, those are the rejections. there are more than 38,000 denials on merits. >> thank you very much. let me ask you this. in your opinion, do the executive actions taken by the administration alleviate the need for congress to pass brought immigration reform measures?

>> thank you, congressman. i would say the answer is no. as the president has made clear on many occasions, he cannot do what congress can do. only congress can create the path to the green card and eventually citizenship. all he can say is we will give you a temporary reprieve from removal. we will make you eligible to apply for a work permit and then if eligible you can apply for social security card, but that does not approach a green card which would give you the right to naturalize and bring it family members and so on. >> let me ask you about the texas litigation. judge hannon enjoined the deferred action program because he believes 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 is a reasonable way to approach the decision in that case? >> i'm glad to have a chance to answer that question. judge hannon had no support in terms of evidence on the record that that was true. the starting point is the secretary's memo. it loosely says repeatedly must engage in individualized case-by-case determinations and also specifically says that even if the criteria are met, it you still need to exercise discretion. furthermore there is a lot of discretion being exercised just determining whether threshold criteria have been met. for example, figuring out of someone is a threat to public

safety there is a opinion of how much of a threat a person has to be before you would deny them and so forth. the critics are reduced to having to argue in effect that the workforce is going to somehow systematically disobey the secretaries clear explicit instructions to exercise discretion. there is not one shred of evidence in the record support this accusation. >> are the president's critics correct when they argue that the president himself doesn't believe daca and dapa are legal? has he contradicted himself somewhere along the line? >> i don't want my answer to sound disrespectful, but that's one of the most irritating objects and not been hearing along the way. when you actually look at the statements the president has made, with one exception, almost all of them have just been general statements about how i

have to obey the law, i cannot suspend the law on deportations and so forth. he recognizes there are limits on his discretion and obviously he believes that daca and dapa. the one exception i have to knowledge is the unfortunate statement made in a spontaneous reaction to a heckler at one gathering that said i'd took an action and change the law. i'm sure if the president could go back and edit his comments he would realize to should have said i took an action to change the policy, which is a more accurate description of what he did. next thank you for the balance that you have brought to this discussion and i yield back my time. >> thank you, the chair will recognize the gentleman from virginia, mr. forbes. >> let's go back to your political theater remark

because there have been two lines in that political theater that our friends on the other side of the all have played over and over again for audiences around the country. the administration is ok because they have removed more illegal immigrants than any other administration. you stay in here that they removed -- i think you said 2 million aliens. but isn't really a little deceptive because word about half of those removals claimed by ice? one of the articles pointed out that the statistics are deceptive because obama explained that enhance border security has led to arresting more people as they cross into the country illegally. those people are quickly sent back to their countries but are counted as deported immigrants. is that a fair statement?

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

you, 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 ships constitutional right over to the president and that he can take any action that he otherwise could not have taken constitutionally? >> thank you, mr. congressman. this is the crux of the argument -- of the lawsuit, and it's certainly one of my biggest concerns. for many years, going back 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 cannot think of a more clear example of something that the constitution clearly says that congress is supposed to perform and as i said earlier, congress

has debated this, the president did not get the policy wanted and now he's decided to do it. i like to read a quote in answering the professor. as to your comments that the president, his multiple statements did not in fact say that he couldn't do this. a heckler told him that you have the power to stop deportations. obama replied, actually, i don't. that's why we are 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 can solve all these problems without passing laws in congress , then i would do so, but we are a nation of laws. that is part of our tradition. so it's an easy way out to try to yellen pretend that i can do something by violating our laws. what i am proposing is a harder task which is to use our

democratic process to achieve the same goals that you want to achieve. this president knows that he cannot do this. he knows that our system does 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 will get a lot of argument about that. this goes so much further than any prosecutorial discretion that has ever been exerted. if this was allowed, then congress's role is abdicated. why would congress take year after year to debate these issues if the president is able to take a scope that we had never seen before, and in a addition, at benefits on top of simply deciding to not deport. >> we saw that kind of syntax change when we heard you can keep your insurance policy if you want to as well, but it makes no sense at we have these arguments. my time is up, mr. chairman.

i yield back. >> we will recognize the gentleman from new york. >> i'm surprised to hear the attorney general of the great state confused political statements with legal statements. it's interesting in a political bait and political discussion. they are not interesting -- what is interesting is an relevant as the attorney general should know, as everyone here should know, are what the laws are what presidents are not anybody else's political statement in any context. let me say also -- let me ask the professor, we have heard that the president's exercise of discretion is categorical, somehow different, and he is

establishing categories to people he has given rights that congress has not chosen to give. i think rather, and please comment on this, that that is not true. he can choose to do that by groups, by category. it would be difficult -- if the president came out with a list and said the following 2 million people by name or granted deferred action, you would think that a 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 he's not invading congress's prerogative because this deferred action can be revoked at any time. it confers no permanent benefit.

it has been stated repeatedly that they get benefits, you may get a social security card, but it's my understanding that you do not get benefits. could you comment on those two points? >> everything you just said is absolutely correct. two things on the discretion issue. i do agree there is no law out there that says the president couldn't grant deferred action on the basis of a class race discretionary judgment if you wanted to do so. we don't have to reach that issue here because president didn't even do that. he did provide specifically, or the secretary did, for individualized discretion. this is the way agencies normally behave, and it's very sensible. you want the agency to provide some generalized guidance to officers as to how to exercise its discretionary power. you want the information to be transparent because it is important. the officers on the ground need to know what to do, and we want some reasonable degree of consistency to the expense -- to

the extent possible. in this particular case, the evidence in the record shows perhaps the applications are being may. what has been stated in dialogue with mr. for and some others, the decision to formally remove border crossings rather than to return them was a strategic choice first made by president bush in order to this incentivize future illegal entries. would you comment on that? >> i think border apprehensions and priorities make sense, and for another important practical reason, is just smart strategy. it's a lot smarter to stop a person at the port of entry divert resources from the

border, let people in a try to chase them down years later. >> many of the critics complain that go beyond nonenforcement immigration laws and provide lawful status to people who were previously in unlawful status. is that correct? >> no, their status remains unlawful. >> finally, critics of the president's actions suggest they are unprecedented and act as though these issues are entirely novel to the federal court. hasn't the supreme court in fact spoken about these -- that the president has the authority and where graining deferred action is appropriate? >> they have done that in a couple of cases, as have any of the lower courts. one supreme court decision specifically recognize deferred action by name. the facts were different but the takeaway has the same, the president has this power.

>> what about the president has done, aside from the fact of his name and perhaps his party and the politics of immigration, is different than what previous presidents have done? >> i don't believe it is different. they are not meaningfully different, a slightly different form was used in previous cases but on the fraction of the undocumented population is roughly the same and in all other respects. one common denominator is in all of these cases, presidents use their powers to relieve noncitizens -- to provide temporary reprieve from removal and temporary permission to work, both of them revocable too large, specifically defined -- defined categories of undocumented immigrants, and that is not unprecedented at all. >> the chair will recognize the gentleman from arizona, mr. franks.

>> 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 two law professors like yourself. i'm not an attorney, so it just gives me a little thrill, you understand. in madison bust a minute federalist number seven, he stated that the accumulation of all powers, legislative executive, and judiciary, in the same hands, whether one, few, or many, and whether hereditary, self-appointed, or elected, may justly be pronounced the very definition of tyranny. framers of the constitution understood the accumulations of powers and tierney were inseparable. they rejected giving the newly created chief executive the legal authority to dispense with the enforcement of the laws. that of course in their mind was

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

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

confer benefits upon them. that's what this president is doing, and that is clearly not prosecutorial discretion. >> professor blackman, do you agree with the comments basically? >> absolutely. ambition must be made to counteract ambition. the president wants something congress want something. the only way to prevent tyranny is if both of them butt heads. people say washington is gridlocked. it's very much the case that today people have strong opinions on issues. all it is regrettable that this congress has not been able to perform, as justice scalia noted last year, gridlocked is a feature not above our constitutional order.

these are political problems not constitutional problems. the mere fact that washington is gridlocked does not give the president power. the case may turn on the equities of an individual case. read both paragraphs. this is one on a case-by-case basis. >> let me quickly expand on one of the things 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 and if it's too unlawful aliens. that seems to be an incredibly stark president. could you expand on that a little bit? >> it's the classic example of why you don't want to start going down this road constitutionally with the president.

think about what he is doing. he is publicly announcing to everyone that even though the law says you are deportable, you are no longer deportable. once he makes those moves, then he confers all these benefits upon this population. that is classic bootstrapping. if the president can make the first two moves, why not just bootstrapped and add the other move, which is the conferral of benefits. that's what makes it so dangerous. if congress's core constitutional powers include anything, it's not just naturalization, but the power of the purse. this is why they have standing to sue him. >> the time of the gentleman has >> before asking any questions

i would ask unanimous consent to put into the records five statements by the following organizations explaining the illegal authority: the asian american justice, the national council of asian the civic americans, and three more. professor legomsky, i have been in congress for 20 years, i have read a lot of testimony. your testimony is the best, most concise, most logical testimony i have ever read. i thank you very much for your service in that way. i would like you ask you -- i would like to ask you a few questions. in professor foley's testimony she indicates that undocumented immigrants that are covered by daca and dapa are no longer

deportable and that illegal immigrants that fall outside these priorities are not to be deported. do you agree with that? >> the statement is not true, and i am not sure where professor foley finds that will stop they are -- find that. deferred action can be revoked at any time. there is nothing to prevent the administration from initiating removal proceedings. i don't know the basis for that assumption. and thank you so much for those generous words. >> in the reno case, justice scalia had a key holding which is that congress has made immune from judicial review any action or decision to commence proceedings, adjudicate cases or execute removal orders.

he went on to say that at each stage, the executive has discretion to abandon the endeavor. at the time, the ins had been engaged in a regular practice that has become known as deferred action. exercising such actions are simply for its own convenience. professor foley, in her written testimony, i think tries to diminish the significance of that case and to distinguish that the court merely acknowledged that congress did not want federal courts to get tied up in educating lawsuits. -- in educating lawsuits. >> that case did involve a denial of relief rather than a granting of relief. but the takeaway is evident from the court's language.

it extends the decision about whether to execute removal orders. there is no basis -- >> there has been a lot of discussion about how dapa and daca grants additional benefits. but it is my understanding that it simply defers action. pursuant to section 274a of the immigration nationality act and a cfr -- and acfr 274a (12) grant that they may apply for

naturalization if there is an economic the sesame. -- economic necessity. does the executive action give some kind of benefit directly? >> i think it is a little bit of both. first, there is the benefit of simply receiving a piece of paper in which the government tells you that we are deferring action in your case. people can disagree with the policy, but i have never seen anyone cite a law that it is illegal to tell a person that. the other are specifically authorized by statute and even more specifically authorized by regulations. they do have the force of law and they specifically say that if you receive 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 were in the country in an undocumented status. it appears to me that the affidavits submitted by the head of ice and the border patrol say that having a piece of paper would be very helpful to them. because the cost for removal is in the detention, the court processing. 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 are going to end up having to say that the nanny 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 will be up to each individual

police officer to decide when their agency's priorities are. helping ice sift out the low priorities -- in addition, they are collecting very useful data. all of that is being paid for by the requesters themselves, not the taxpayers. >> the chair would now recognize the gentleman from texas. >> thank you to the witnesses who are here today. i want to direct the first question to our two law professors. did both of you read the 123 page opinion deck of >> -- page opinion? >> yes. >> yes. >> for full disclosure, he was a

classmate of mine in law school. he was the best -- he was one of the best and brightest. he is a brilliant guy. have you also read the response that has been filed by doj? >> yes. >> i was noticing in page 10 of the response, where they are saying that the government will suffer irreparable harm absent a stay -- and in the very next sentence they say that the in judge -- that the injunction blocks dhs from exercising their authority conferred by congress. and it is congress who is trying to stop them from exercising the authority, not by a written executive order but as a good

monarch would do, the president spoke the law into existence and the secretary of homeland security ran and put it into a memo. i am wondering, if a law student , in response to an exam question on the 123 page opinion, came back and said irreparable harm because the injunction will prevent us from doing the job that congress conferred on us, what would be your response as law professors? >> i guess my first response would be bootstrapping argument. f. what is happening here is that they are saying that they will suffer irreparable harm because they are prevented from doing what they think they have the authority to do. but the $6 million question is

do they have the authority? the answer has to be no, because despite professor legomsky attempt to identify for criteria that he believes provide meaningful limiting principles in fact they don't provide a meaningful limiting principle. if this president can do this, future presidents can unilaterally suspended for entire categories of people that they prefer for some reason, application of certain laws. environmental, labor, tax laws. that upsets the constitutional balance. >> if i may add, this was not a constitutional position. i think judge hated -- i think the judge showed his hand a bit and suggested very clearly that there would be an abdication. the constitution says that the president must make sure the

laws are faithfully executed. the judge's opinion explains very clearly why. he says that we need rulemaking. we don't exactly know how this policy works. in my research, i find a checklist used by dhs. professor legomsky found a different form. do we know which one is being used? no we don't. show us what's happening and then we can go to court. we are learning this now, after the memo has been released. if texas had not filed a lawsuit when they did, the law would be in effect and there will be no way to challenge. >> this is an incredible

response showing how poorly done it is. at page 10, it says that the responsibility for regulating the relationship between the united states and our alien visitors has been committed to the political branch of the federal government. as such, it causes irreparable harm. they cite that this belongs to congress and then come back and say that if you leave it to congress, it causes the executive branch irreparable harm. for heavens sake, our justice department needs better attorneys. especially when you look at page 15, saying that you have to throw out the injunction because it undermines the department's efforts to encourage illegal aliens. they were not given that responsibility, that is not their job. >> the chair would now recognize

the gentlelady from texas, this jackson lee --ms. jackson lee. >> we should knowledge that we appreciate our witnesses coming and giving testimony. i also think it is important to a knowledge that there are many issues that this judiciary committee -- my friends on the other side of the aisle republicans and democrats collaborate on. i think that should be a message preceding the vigorous disagreement and unfortunate interpretation that is now given at this hearing. let me associate myself with the words of my chairman. i would like to think that this is a hearing regarding president barack obama's executive action. and i would prefer him not to be called obama and to honor the

office in which -- the office of which he holds. i would also like to know is the constitution. we went through this argument to the various professors with respect to the powers of this president. we all can interpret the final words of section two which deals with taking care that the laws are faithfully executed. we make the argument that the executive actions are in actuality a reflection of those laws be faithfully executed. i don't really want you all to suggest that i am trying to show my smiley face, -- my smiling face, but immediately when the order came out, a group of families that would be severely impacted came together and said they stand with the president

for the discretionary relief that allows him, not to convey status, but through his attorney general to have prosecutorial discretion and to be able to discern the prioritization of crooks, criminals, and felons versus families. this is an example of a parent that would be separated from their child. i want to make sure that i have professor legomsky -- that i pose a question to you because i think that you elevated us to a level of understanding worthy of commentary. this is a hearing that contribute to political security and not national security. in this meeting, the backdrop,

we are not funding dhs. that is a horrific tragedy in the midst of i sold -- in the midst of isil. i would say to my good friend from nevada, that we have documentation that nevada be severely hampered by the presence of your lawsuit, but more particularly not funding dhs. i may have the opportunity to submit that into evidence. i am looking for my documents. but there are documentation that -- i ask you to review the impact of reviewing -- of not funding dhs. but you are engaging in a discussion that tracks why dhs is not being funded, allegedly why -- allegedly because this is

not being authorized. for the people that believe that this is a frivolous exercise professor legomsky, these are the procedures that they have asked these individuals to go to. i count up to 15. i would like to know which of us go to 15 eligibility requirements to do anything. going back to the constitutional question of the executive action, you premised it on the fact that the president had the discretionary authority but in actuality the arguments made by my good friends are incorrect. that the authority that he is now exercising is limited. it is not offering citizenship not offering the affordable care act. could you tell us how we're in the context of not having a

runaway executive, laying the president for a runaway executive in the future. >> as outlined earlier, i think that there are several tangible limits. i know professor foley just said that the four limits don't work, but i don't know why they don't. i very much appreciate your having brought to life what these issues are about. this is not an academic game, we are talking about the lives of millions. >> we would now recognize the gentleman from pennsylvania mr. marino. >> i have a request, with the chairman skip me for a moment? >> i would be thrilled to go to the gentleman from ohio.

>> for faster foley, a number -- professor foley, a number of my colleagues in the other side of the aisle are saying that republicans are holding the dhs funding bill hostage. we passed legislation last month that funds the department at the levels they wanted. in your opinion as a legal scholar, do you think we have held anything hostage? >> i think you are doing exactly what the constitution says you should do. the framers anticipated that you would vigorously defend your constitutional prerogative. >> we did include language in the legislation that said that we think what the president did last december was constitutional -- was unconstitutional. we put language in there that said, we don't think you can use taxpayer money that you shouldn't use. do you believe the president's

actions last november were unconstitutional? >> i absolutely do. it is one thing to hold an appropriations measure hostage it is another thing to hold the constitution hostage. >> you think it is unconstitutional, i think it is a constitutional, and a whole lot of other folks -- i think it is unconstitutional, and so do a whole lot of other folks. and last week we had a federal judge say that what the president did was unlawful. the fundamental question here is how can democrats in sis on making sure -- democrats insist on making sure that they can hold the dhs funding bill hostage to fund something that a federal judge has said is unlawful. isn't that an essential

question? how can they insist on having a bill that they want to fund something that a lot of people have said is unconstitutional and a federal judge has said is unlawful. >> you might want to ask your colleagues that question. but in my opinion, it seems like it is the other side of the political aisle that is holding the constitution hostage. >> but it is not only that. they want to insist that they can fund something that the federal judge has said is unlawful, but they are not willing to debate the issue on the floor of the united states senate. let's have the full debate like we are supposed to. we invited secretary johnson to come in and testify at an oversight hearing next-door. he can go on every tv show, but can't come here to answer these

questions? if anyone is holding this hostage, it seems to me that it is democrats in the united states senate. we have a bill over there that funds dhs but has language that says you can't do something that is unconstitutional and that a federal judge says is unlawful. but they refused to debate it. >> that is a shame. it is the process of debate that gives your value to the american people. i am glad we are having a hearing today. but they shouldn't play politics with the constitution. >> the final thing i would say and it has been said many times. the president said many times that he couldn't do what he did. legal scholars on the left and right have said it is unconstitutional. a federal judge has ruled that it is unlawful.

we have a bill that funds dhs to the level democrats wanted. we put language and consistent with what political scholars across the spectrum say, and consistent with what a federal judge just ruled on last tuesday. it is unbelievable to me that we cannot just past that legislation in do with the american people want us to do. >> i think the gentleman from ohio. >> and i have unanimous consent to introduce two items into the record? >> ok. >> i would like to place the eligibility chart into the record. a chart dealing with the state of nevada homeland security profile summary of fina -- of fema. >> the chair now recognizes the gentleman from tennessee, mr. cohen. >> professor legomsky you said

that -- how many different professors and attorney specializing in immigration law thought this was appropriate and constitutional? >> 135 immigration scholars and professionals, not even counting practitioners. >> do you know how many people in that similar class, although the class is hard to define, said it was unconstitutional? >> i am aware of two. >> 135-3. >> i don't want to represent that every immigration professor has opined on the issue. but of those who have, those are the numbers. >> if you are a professor of immigration law for 30 years?

and you have written a textbook that was in hundred 83 loss goals -- 183 law schools? these people have done a lot of work, but you are the most expert person that we have today. you are the expert, and none of these other folks have written textbooks on immigration law. their main work has been on property law, constitution law and health law. you believe this is 100% constitutional? >> i do. i have a great deal of respect for my colleagues here. they have done a great deal of scholarship in their fields. but whether the custard has been violated depends on the immigration laws. if you are going to say he did

not take care to faithfully execute the laws, you have to specify which laws he violated. there has been almost no reference to specific provisions of the law that they say have been violated. >> there is a clause in the united states code that says the secretary shall, acting through the undersecretary for border security shall do a certain number of items. one says enforcing policy priorities. does that give the administration the ability to do what they did? >> i think so, but that is not limitless. they must exercise that power consistent with statutory constraints. no constraints have been credibly identified. >> you are an attorney i think for immigration?

do you have any idea of how many dollars it would cost the taxpayers to hire enough attorneys to try to stop -- to send those people out of the country? >> i don't have a number on that. there have been studies, and there is no doubt that the number is cost prohibitive. i don't of the number, but it is astronomical. >> astronomical is close to many millions. same ballpark. presidents reagan and bush number one have done similar things to what president obama has done. you commented that -- how would

you distinguish the response he has gotten? how is it different from the other presidents? >> i think it is similar because in each case the president was acting in an area in which congress was deciding not to act. one of the differences that professor foley mentioned, and i have to say this is a fair argument -- the argument was that president bush was exercising a specific statutory power because there was something in the law that authorized voluntary departure. the only point i would make is that first, deferred action itself is recognized many places in the statutes. it has been recognized in many courts. and second, the most explicitly all authority that has the force of law is the regulation that has been in force for more than

30 years. >> i want to make clear, besser foley, i wasn't talking about the ut-kentucky game. >> the chair now recognizes the gentleman from texas. >> thank you all for being here. professor blackman, thank you for being here. i couldn't get into south texas. let's assume these hypotheticals. law professors love hypotheticals. the next president, whoever it is decides, i am going to

postpone the individual mandate in obamacare indefinitely. so be it. the next president decides, i am going to postpone the implementation of epa regulations indefinitely throughout the fruited plains. sends out a memo. i have decided that in all fairness, some people should not pay income tax. so i am going to tell the irs not to enforce the irs code to a certain group of people that i think should not have to pay income tax. we could go on indefinitely. if everything stands like it is with the courts, the president executive issues -- orders, is

this a possibility that these kinds of executive memos from future executives may happen? mr. blackman: with respect, we are already in that era. i think it is a very, very scary time. if we don't have enough agents to enforce the capital gains tax, we are not going to enforce it -- we can tell people the corporate income tax is too high. for any corporation that has so many employees, we are not going to enforce it. that is a dangerous precedent. the constitution says, you shall faithfully execute the law.