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.

i am ok with the president making a good-faith belief. i'm ok with that. i think the fact here is one of bad faith. the reason why the president's statement is relevant is not the political theater. it is a statement he says he was asked, and he said no. the justice department said, this can't happen. suddenly, you lose up already. i think it is bad faith. we are in uncharted waters. you will find that there's not much written on the take care clause. that is why the separation of powers trumps the immigration law when it goes too far. these provisions grant discretion, but to grant the amount of discretion now is unconstitutional. i should add that the memo does not put that much weight on these supervision, but the doj did. they shifted position of these

provisions to put more weight on it. there is discretion but it is within the take care clause, which we have to litigate, and it will be at the fifth circuit any minute. rep. poe: i want to reclaim my time. i didn't ask you to tell me how to make a watch, i only asked you the time, and i mean that kindly. my question was, those hypotheticals that i gave you are those real possibilities if everything stands the way it is? the next future executive, in good faith, faithfully executing the law says, it is just not fair, that everybody has to pay this income tax of 39%, or whatever it is for those people, or the epa, that is too big a burden on americans to have to comply with the epa -- give them a pass. it is just not fair. that was my question.

and the answer is, it is a possibility? mr. blackman: the answer is yes. if this precedent stands, the game is over. you as a body of congress have no power and all you have left is the power of the first. rep. poe: one more question if it is permitted by the chair. what if the same scenario exists and you have a state governor who decides that, as the executive of the state, the constitution empowers him or her to waive federal law or federal regulations, that it is his or her discretion as the governor, executive order, send out memo to the state of whatever, i didn't say taxes, but it could be -- just ignore this federal rule, by a regulatory agency under the idea that the executive, whoever it is in the

state, has the same authority. rep. poe: that would violate in both cases. the presidents are bound by it and the state are bound by it. rep. poe: i'm out of time. i yield back to the chair. chairman goodlatte: thank you. the chair will now recognize the gentlelady from california. rep. chu: i would like to enter into the record the center for american progress report that said it would cost $52 million to deport the people who would benefit. chairman goodlatte: without objection. rep. chu: professor legomsky, critics argue that even though there are individualized criteria that officers have to use on a case-by-case basis, the high rate of approval for these programs shows there is a blanket approval of these cases. professor, you served as a chief counsel in the department of homeland security for several years, including the time when

it started. i'm curious to hear what you learned about the adjudication process of these cases. i understand that there is a report of 90% approval for applications. can you explain why there is this high approval rate and whether it is appropriate to conclude that officers are not making individualized assessments? mr. legomsky: thank you. at first blush, i agree that 95% sounds high. if you are an undocumented immigrant, and you have some other negative conduct in your background, there are two things you are unlikely to do. you are not going to initiate contact with the government and say, this is my name, this is where i live, i'm undocumented and i have this other negative thing in my background, and here are my fingerprints. second, unless you are independently wealthy you are not going to send the government

a check for $465 for something you are unlikely to receive. this tends to be a very self-selecting population, overwhelmingly, people with rocksolid cases. therefore, the high approval rate is no indication that these are being rubberstamped. the notion that they are being rubberstamped would come as a surprise to the 38,000 people who have received denial notices. rep. chu: thank you for that. congress mandates through the secretary of homeland security the natural immigration enforcement policies and priorities. the secretary has directed the agency to prioritize certain categories of people. in the texas versus u.s. judge case, the judge seems to accept that prosecutorial discretion is acceptable in that context. he seems to propose deferred action and notifying individuals

that they are not priority. isn't deferred action a form of exercising prosecutorial discretion? how would you counter this reasoning? mr. legomsky: i agree with you. deferred action is an exercise of prosecutorial discretion. the only thing that distinguishes it from some exercises is that the government is giving the person of piece of paper saying, this is what we decided to do. i think that judge hammond has confused the question of whether deferred action is legal with the question of whether these other benefits are legal once deferred action has been granted. if he objects to those other benefits then probably what he should be doing is advocating for a change in those laws. the president did not touch any of those. rep. chu: professor, in judge hammond's opinion, he argued that dhs acted unlawfully because it did not allow the

public to comment about the new program in accordance with the administrative procedures act. can you walk us through whether dhs was required to follow the administrative procedures act before implementing the program? mr. legomsky: yes. the notice and comment requirements by statute do not apply to general statements general agency statements of policy, as the supreme court has interpreted. what this really turned on in this case is whether you believe dhs when they say they were exercising real discretion. judge hammond concluded they were not. the only evidence he cited was an unsupported statement by an agent whose support was being decided by service members

which is what the vast majority of adjudications are being decided. he said they must be getting rubberstamped. the adjudicators at the service centers take great care to go over the documentation very carefully. there are fbi background checks, and if there is any case which they think would be some use in conducting a personal interview they can and will referred the person to an interview. those are very careful educations. -- adjudications. rep. chu: thank you. i yield back. chairman goodlatte: the chair will now recognize the gentleman from pennsylvania. rep. marino: thank you. i was in here a great deal but i have several hearings going on. professor legomsky, as a

prosecutor, i have the authority at the state and federal level to use prosecutorial discretion but only on a case-by-case basis , on an individual basis, not for a class. i couldn't simply say that those individuals that are driving under the influence, and even those above those that are below 0.1, i'm not going to prosecute. would you agree with that? mr. legomsky: yes. rep. marino: the president's deferred action, as far as i see it, is simply saying, i'm not going to prosecute now, but i may down the road and i may not. wouldn't you agree that those who are here, that the president to defer deportation is violating the law? mr. legomsky: i think i answered your first question too

quickly. as long as discretion is left to the individual officer, whether to initiate prosecution, that does seem to be legal. i understood your hypothetical to mean there was no discretion. in this case, there is. the secretary has told the officers that even if the threshold criteria are met, they are to exercise discretion. rep. marino: with all due respect, i'm not hearing that from the officers. what i'm hearing is a direct order to not detain these individuals. let them go. again, i'm going to go back to the issue of, on an individual basis, there is discretion. but the people that are here are here illegally, or the president would not have to issue an order saying to do for this. that is a class of people. that is millions of people.

you are an expert in these areas. from a prosecutor's point of view and even some defense attorneys' point of view, it goes beyond what was intended concerning prosecutorial discretion. another issue i want to bring up concerning the way that we operate here, i'm sure that you know that the house of representatives has passed a homeland security bill giving the president $1.6 billion more than he asked for, $400 million this year more than last year. the only issue that i hear from the administration is that we want to shut down homeland security. i would beg to differ with you. i think common sense dictates that if you are giving more money than the president asked for to fund homeland

security, it is the fact that the president has made it clear that he wants the deferred action and congress has said, we are not allowing you to do that. what say you? mr. legomsky: on the first point, there are many thousands of adjudicators, and if one of them told you that we are not allowed to use any judgment in deciding whom to prosecute, that person is violating -- rep. marino: it hasn't been one of them. it has been many. i have a little concern about the information i'm getting from the administration. attorney general you want to weigh in on this? prosecutorial discretion. mr. laxalt: thank you congressman. it is great to get back to this

point. you need a case-by-case basis and they are basically making a mockery of all this by using these magic words. i don't mean to attack the professor, since he was formerly in this job, but they are stating that they are doing this, but there is no way with this kind of volume they are with the percentages that have been approved. while the professor discusses self-selection, the only of the 5% that aren't making it through, they aren't making it through because of procedural errors. you guys have all the authority in the world. the next question is to pull up a bunch of line agents and find out whether or not it is true that individual discretion is happening. i find that impossible to believe. rep. marino: my time has expired. i yield back. chairman goodlatte: i thank the

gentleman from pennsylvania. the chair will now recognize the gentleman from florida. rep. deutch: thank you. radical security operations are going to be scaled back. cyber attacks north korea won't shut down. recruitment of terrorists won't shut down. gang violence below our border won't shut down. this congress is on the verge of forcing 100,000 dhs employees to work without pay, but another 30,000 on furlough -- they are tsa agents, port inspectors, disaster relief staff, and intelligence experts. my question is, is this how the new republican congress treats people who are put to work every day to protect our country? these americans have mortgages to pay, mortgages to support.

homeland security funding has nearly dried up for one reason. some members of the majority are more concerned with pleasing the anti-immigration fringe than paying the men and women who go to work everyday protecting our nation. they are holding dhs funds hostage. their demand, that we mandate the deportation of thousands of students and young people who arrived here illegally as small children, that we deport immigrants who never chose to break the law from the only home they've ever known. with little time left until funding expires, this committed he is using -- this committee is using precious time on whether executive orders are constitutional. since the founding of our nation, questions involving the constitutionality of executive action have been resolved by the judicial branch. questions on whether the executive order is

constitutional are being heard in court as we speak. i believe the executive order is constitutional, but i also understand that some disagree. i respect that. the fact remains that the funding -- de-funding dhs will not advance the goal of nullifying these executive orders. de-funding dhs will not ramp up deportation. on the contrary, forcing border agents to work without pay or to go on furlough will likely slow down deportation. my republican colleagues one a border security enforcement only approach. guess what, the policy that has been in place for years is not working. even with the record-breaking deportation numbers of this administration. it is logistically and financially impossible to locate, prosecute, and deport 11

million undocumented immigrants in the united states. immigrations and customs enforcement must work with the budget that it is handed. that means exercising discretion, choosing which deportations should proceed and which should be put on hold, or as the president called it, deferred. do we deport a member of a gang, or a college student who arrived here illegally when she was three? do we deport the mother of an american child, or try to keep families together? these are the questions that republicans in congress have refused to answer year after year with a comprehensive immigration reform bill. these are the questions that my colleagues left president obama to answer with his executive orders on immigration. the executive orders don't change the law. they simply a short undocumented immigrants living, working, and

raising families in our communities, that they will not be deported before someone with a felony. we should be working day and night to keep the department of homeland security funded and fully operational instead of holding hearings on questions that the courts are answering. the safety of the public, the well-being of our communities must be the priority of immigration enforcement officials. i suggest that it should also be the priority of this congress. thank you, mr. chair. i yield back. chairman goodlatte: the chair will recognize himself. general laxalt, my colleague from new york, mr. nadler, suggested that you were naive for thinking that the 22 separate times the president has said he lacked the power to do what he did, you and i should have realized that was a political comment and not a

legal comment. what i would ask you to consider is requiring a disclaimer beneath every comment made by an elected official so we can know whether he or she really means it or whether it is just for political expediency. i mistakenly thought the chief law enforcement officer for the entire country would mean what he said when he was making a legal observation. it was news to me that all of that was political grandstanding. if you can work around the first amendment limitations and require disclaimers so we know whether a candidate or officeholder means what he or she is saying, it would be helpful to me and i wouldn't feel as naive, and perhaps you wouldn't either. what are the limits of prosecutorial discretion? mr. legomsky: to summarize them

briefly, the president cannot unlawfully expand the resources -- chairman gowdy: so if we fully funded everything he wanted with respect to dhs, he could not suspend any deportations? mr. legomsky: i think that is an unanswered question. chairman gowdy: that is what you just said. mr. legomsky: i said that was one limit. chairman gowdy: but i just removed that limit. if we were to fully fund that, he would lack the discretion to now enforce that law, correct? mr. legomsky: it has never been decided by a court because it would be rare. chairman gowdy: what i'm trying to get at is, if you are district -- if your district attorney decided that he or she was not going to prosecute any heroin cases because he or she thought the war on drugs was a lost cause, other than elections, what remedy would the

legislative branch have if they disagreed with that executive branch employee's refusal to enforce the law? mr. legomsky: the legislature could supersede the decision. there's nothing in the statute that supersedes the president 's priority. chairman gowdy: you mean the legislative branch could put in that statute, you shall prosecute? mr. legomsky: that would not be enough. chairman gowdy: what should we put in our dhs funding to let the president know? mr. legomsky: i don't know that i could draft it. the legislature could do something similar to what it did when it mandated specific priorities. there is language that mandates the priority on national security. chairman gowdy: why does the legislative branch have to pick priorities? why can't we just say we want the law enforced? mr. legomsky: that is one option

for how a statute could be drafted. chairman gowdy: you would agree that the ultimate remedy is the ballot box right? if the da is not enforcing the law, voters can vote them out? mr. legomsky: yes and no. there are instances in which plaintiffs have been found to have prosecutorial discretion. chairman gowdy: do you think the consequences of elections might have been why the president waited until after the midterms to issue his executive order as opposed to before? mr. legomsky: yes and no. i'm not sure it was the outcome of the election -- chairman gowdy: with all due respect, this is legal confusion. i'm trying to understand what the limits are. there are at least three different categories of law. there are categories that say you can't do something like possess child pornography. there are laws that require you to do something.

then there are laws that require the executive branch to do things, for instance, turn in a budget. is your testimony that the executive has power to use prosecutorial discretion in all three categories? mr. legomsky: it would depend. chairman gowdy: give me a time where a president can refuse something that congress tells him or her to do. that is anarchy. mr. legomsky: i agree with you that congress could foreclose a particular type of exercise of prosecutorial discretion. chairman gowdy: let me ask you this, can the president suspend all deportations, and if not, why not? mr. legomsky: i believe not because that would contravene the act. chairman gowdy: how far can he go? out of 11 million, can he go up to 8 million? mr. legomsky: my answer to that question is the same as the one

i gave earlier. it is impossible without empirical knowledge of whether that leaves him with the ability to substantially spend the resources congress has provided. chairman gowdy: what i would love, and i'm out of time, i want you, and maybe it is a suggestion for your next article, i want to know if congress fully funds, fully funds dhs, does the president lack the discretion, citing the apportionment of resources, to exercise discretion? mr. legomsky: that question has never been answered. chairman gowdy: i would love for you to take a crack at it. the chair will now recognize his friend from new york, mr. jeffries. rep. jeffries: thank you, mr. chair. let me also thank the ranking member of the committee for his presence here. i want to start with the attorney general, and perhaps

further explore this question of prosecutorial discretion in the context of the president's executive order. there are approximately 11 million undocumented immigrants in this country? mr. laxalt: correct. rep. jeffries: presumably, one of the options that some in this congress would like to see is the deportation of all 11 million undocumented immigrants. correct? among the range of ideas within this congress, there are some presumably, who would like to deport all 11 million. mr. laxalt: i'm not here to represent any other members' views on this issue. rep. jeffries: do you think that is a reasonable solution? mr. laxalt: we've entered this lawsuit as 26 attorneys general because we believe there is pressing constitutional issues

at stake. as i've stated, this is not about politics and it is not the job of the attorney general to wade into this political realm. rep. jeffries: thanks a lot. congress has never allocated the resources necessary to deport all 11 million undocumented immigrants. that is an accepted fact. nobody argues otherwise. if the president and the department of homeland security lack the ability -- because we, congress, have not given him the resources to deport all 11 million -- doesn't the department of homeland security have the discretion to prioritize the deportation of some undocumented immigrants over others? rep. jeffries: mr. congressman the 26 states that have joined this case, along with the

federal district judge in texas believe that there are limits in this area. we've gone over them at nause um. the president has overstepped his authority to execute. and as we discussed, failed to do case-by-case. rep. jeffries: thank you. i appreciate that. i want to move on. let me make the point that i think should be self-evident. if congress is not giving the president the resources to deport all 11 million undocumented immigrants, it seems that the department of homeland security should have the ability to prioritize the deportation of felons over families. that's a reasonable approach, since congress has not seen fit to give the department of homeland security the ability to

deport everybody on an undocumented basis. in nevada, the office of the attorney general is not self-funded, correct? mr. laxalt: i don't -- rep. jeffries: your funding is provided by state legislator true? mr. laxalt: yes. rep. jeffries: so you joined this lawsuit and made the decision on january 26, and you announced that decision consistent with your views as it relates to the nevada constitution. you didn't consult with the government when you made that decision? mr. laxalt: mr. congressman, i'm independently elected and it is my job -- rep. jeffries: i'm not arguing that you should have. i just want to establish the fact that you didn't. it is a matter of public record. i just want to make sure that

i'm clear. you didn't consult with the government. mr. laxalt: as is in the record. rep. jeffries: i appreciate that. if i could enter into the record, an opinion piece nevada's right choice on immigration. a february 2 article. chairman gowdy: without objection. rep. jeffries: it says, a public dispute broke out when nevada attorney general adam laxalt went against governor sandoval's wishes and joined the lawsuit filed by 25 other states. you will agree that the current immigration system is broken and that reform is necessary, but mr. sandoval opposes litigation and has suggested that an aggression reform is the best way to proceed. i would assume that even though you disagree, even though this republican governor believed in unilateral action, would it be

reasonable based on his disagreement to defund the office of the nevada attorney general? mr. laxalt: mr. congressman there's no way something like that would happen. the attorney general's office is top law enforcement for the state and we have many statutory duties to protect our citizens. a lot of this is much ado about nothing. the governor and i worked together on many issues, and i'm the legal advisor to all of our agencies as well as our boards and commission. this is an unfortunate issue but as i said, there is no issue with the governor and i. rep. jeffries: thank you. i hope you will also agree that even though there is a disagreement between the president and congress, it would be unreasonable to use your

phrase, to defund such an important agency simply because of a political dispute. i yield back. chairman gowdy: before i go to the gentleman from idaho, i would say that i think having an independent attorney general is a great idea. it is something we ought to try on a national level. mr. labrador. rep. labrador: thank you, mr. chairman. my good friend, mr. jeffries, is comparing apples and oranges. nobody in congress is trying to defund homeland security except for the democrats. we funded fully the department of homeland security except for the president's illegal and unconstitutional actions. it seems like my friends on the other side are willing to put 5 million illegals ahead of the safety of the united states. we passed a bill that fully

funds, but funds above the level that the president asked for. we completely funded the department of homeland security. the only people stopping this funding are democrats in the senate that are not willing to listen to an argument why we should have this bill passed through congress. there's nobody on my side trying to defund this. mr. legomsky, i listened to your testimony. i understand you are a professor of law. you also were the chief counsel for u.s.c.i.s. did you ever do private practice? rep. labrador: i did 14 years of private practice on immigration law. i defended and represented a lot of people who were in legal jeopardy.

what do you think one of the attorneys working for ins would have said if i would have gone up to them and said, mr. attorney or mrs. attorney, could you please give me prosecutorial discretion because you don't have enough funds to enforce the law? what do you think the answer would have been? mr. legomsky: the answer would probably be no, but the real question is, you don't have enough funds, and here is why mike ryan -- my client should be a low priority. rep. labrador: i asked that many times. do you know what the answer was? no. they never did that. you are confusing what really happened here. i've been listening to you clearly. you said, your words were that there is a direct criteria, a threshold of criteria. can you name one case that has

been put in deportation or removal proceedings? just one case that has met the threshold of criteria? mr. legomsky: i have to answer in two parts. rep. labrador: just one case. mr. legomsky: i understand. judge henan specifically ordered the government to give some examples of cases in which people were found to have met the threshold criteria. rep. labrador: have they provided that information? mr. legomsky: that is what i was leading up to. there was a sworn affidavit that offered several examples of such cases. nonetheless, judge henan said the government had not provided information. >> in paragraph 24 of the neutral declaration, it was gang membership or gang affiliation or fraud. the only department was gang membership or fraud.

those are criteria of zone one. gang membership would make you a high priority for national security risks. fraud, i don't think there is much discretion saying someone committed fraud. rep. labrador: are you saying fraud in the application? mr. blackman: lying on previous applications. these are the only examples they have. rep. labrador: and those are criteria that would make you ineligible for any form of relief? mr. blackman: yes. that has nothing to do with case-by-case discretion. there is not much there. that was in paragraph 24. rep. labrador: you say that it is not a legal tell tell a person, we are not going to proceed against you. that is not putting you in deferred action. i think you've been misleading us a little bit. i don't think you are doing it on purpose, but there is a

difference between not deporting somebody and putting them in deferred action, is there not? mr. legomsky: yes, but in the latter case, you are telling them that. rep. labrador: but the reason you are doing it is you want to grant them benefits. the reason i had cases in deferred adjudication was because there was some criteria that they met. they were either helping the prosecutor, helping the local police, there was some criteria that they needed to stay in the united states so they could be granted affirmative benefits. that is why we have deferred adjudication. sometimes, immigration chooses not to deport somebody, but the reason you put somebody in deferred action is to grant a specific benefit. that's what this administration is doing deciding not to deport people.

they are saying, we want to put them in a criteria that under the law, they are going to receive benefits. could this president say tomorrow, i want everyone in the united states illegally from mexico in deferred action? could he say that? mr. legomsky: my gut instinct is to say that that would be difficult because it would turn on the empirical question of whether he would still be able to spend the resources. rep. labrador: you keep saying that. they can always spend the money. that is the most ridiculous statement i've heard. they will always spend the money. the question is, does he have the discretion to pick one category of people and say, i'm not going to deport you? that has never been done in immigration. it was always done on a case-by-case basis. this president has decided not to do it on a case-by-case basis, but to categorize groups of people.

chairman gowdy: the gentleman is out of time. the professor may answer if you would like to. mr. legomsky: as you know, there are lots of reasons that people have been granted deferred action. as to your last example, granted only to nationals of mexico, i would mention that there are lots of cases in which presidents have granted functionally equivalent people based solely on country of origin. that would present a close question. rep. labrador: let's not make that -- chairman gowdy: the gentleman is out of time. the chair will now recognize the gentleman from illinois and apologize for overlooking him last time. >> i know that, mr. chairman. good to be with you this afternoon. good i have my staff assistant

handout a memorandum to all of our witnesses? chairman gowdy: yes. rep. gutierrez: thanks. >> could i ask unanimous consent to put in the record the declarations of the director? chairman gowdy: without objection. rep. gutierrez: thank you, mr. chairman. i think we should use this document, because it is written in 1999, signed by henry hyde and a series of other outstanding republican chairmen of this committee, in which they write to janet reno saying, you've got a problem with discretion here. you have not done it enough. you have the ability and the right in law to do exactly that

and you haven't done it. i just want to state for the record that not our party but the majority party has stated and stipulated through this memorandum that they believe in discretion and the administration should use discretion. in the memorandum, it says, you have the discretion to alleviate hardship. as to why you have been willing to exercise such authority in some cases, we ask you to view the 1996 amendment -- chairman gowdy: would the gentleman yield? rep. gutierrez: i can't. chairman gowdy: can't or don't want to? rep. gutierrez: i'm in the middle of reading something. chairman gowdy: will you yield? rep. gutierrez: if i could have my time back. i was trying to have a conversation. chairman gowdy: i would be happy to give your time back.

rep. gutierrez: you've got three witnesses to one. chairman gowdy: the gentleman from illinois controls the time. just so the gentleman knows, we stopped the clock. rep. gutierrez: thank you. i came here to get a conversation. just reading a memorandum. i have entered this into the record a dozen times. everybody should have a copy of it by now. everybody should know i'm bringing it up each time anybody talks about discretion. it is established. the chairman of the committee signed this. i'm no pushover when it comes to immigrants. it says, the ins general of regional council has prosecutorial discretion in the

initiation of determination and removal proceedings. [indiscernible] optimally, removal proceedings should be initiated and terminated only on specific instruction from authorized officials. so let's make it clear. it is well-established in the law, unlike other parts of the federal government, that there is discretion when it comes to the application of the laws. i just wanted to say, i have a definition here of "politician." are you a politician? i have webster. mr. laxalt: i am an elected representative. rep. gutierrez: you are a politician. it will say "elected representative" rather than politician. i can find you other

definitions. just so we are clear, you are in the politics business. that is what you do. that is how you earn a living. i just came here to say, the supreme court is going to answer this for us all. that's why we are a nation of law. we all know where this is going. i'm not a lawyer but i know this is going to the fifth circuit. they pick the most conservative judge they could possibly find to hear this case. they didn't come to illinois with this case. they didn't go to new york. they didn't even go to nevada. they found the judge -- they went to southern texas. this is going to be decided but i want to make it clear because there seems to be some confusion. people keep saying what the president did was unconstitutional.

the former attorney general, now governor in texas tweeted, it is unconstitutional. has anybody read into the decision? nope. yet you have the governor, the former attorney general, saying it is unconstitutional. you see the parameters we are dealing with. we are dealing with political parameters on what should be an issue of how to deal with immigration. i want to go back to my colleagues. the fact is 4%, many of my colleagues like to argue, why don't you just round up all the criminals and the port them? because we only provide sufficient money for 4%. no one has ever come here to suggest that we should provide any more money. it is always this context.

even my friend, he said, mexico -- why are we always talking about mexico? why does the federal judge only describe the border? what happened to the border at lax? what happened to the one in new york city? all of those are points of entry in which millions of undocumented immigrants have come into this country and overstayed and are part of the 11 million. my only point to you is, you are not going to deport 11 million people. this is a political case. it will be judged on its merit in the supreme court. i will end with this. mr. chairman, i want to find a solution to the problem, not keep having hearings where the four distinguished jurists are not going to decide the case. why don't we find a solution to the problem of the broken

immigration system? i'm sure most of us would agree we should go after gang bangers drug dealers rapists, and murderers, and not people trying to raise their families. lastly, this is a very perilous place for my friends in the majority. you have 5 million american citizen children who are never going to forget for generations how it was you treated their mom and dad, how it was you treated their mom and dad, and if you treated them in a cruel manner. that is a community. we are not a community in which the undocumented and the documented live in a cast society. fourth of july, we are having hot dogs and hamburgers. thanksgiving, we are having turkey. chairman gowdy: i am trying to treat my friend in illinois from a good way. you do not need to apologize. the chair will now recognize the

gentleman from texas, mr. ratcliffe. rep. ratcliffe. : i would like to yield my time to the gentleman's from south carolina. chairman gowdy: he's got warrants outstanding. he's from georgia now. >> i would like to clarify again. we did this last time. it is groundhog day. here we go again. the letter spoken of was dealing with legal permanent residents. it was not dealing in this discretion of illegal. so basically, to take a letter and list -- it must at least be fair with the letter. to come here and use a letter and take people who are no longer in this body, and some who happen to be here, to say

that is just wrong. i believe the gentleman from illinois has a good heart. i just believe he's dead wrong on many things. let's at least have an honest discussion about this. let's not throw in names so you can stake yourself in arguments that are not there. this is the wrong argument. this is what is wrong that the american people don't get. i appreciate the gentleman yielding. i yield. >> i thank the gentleman. i'm not sure if my faux pas offended south carolinians or georgians, but my apologies to both. chairman gowdy: probably equally. rep. ratcliffe: i thank everyone for being here today. professor legomsky, it is clear that you think the executive order was constitutional. it also appears to me that while you think the president's action

was lawful, reading the tone and tenor of your testimony, and your articles, it also seems to me that you want him to be right. mr. legomsky: i do. i believe in what he's doing and think he's taking sensible action. rep. ratcliffe: do you consider yourself an advocate for the rights of people in this country illegally? mr. legomsky: i consider myself an advocate for the legal rights of all people. everyone has certain rights. rep. ratcliffe: do people who come across our borders without permission -- are they here illegally? mr. legomsky: yes. rep. ratcliffe: is there a reason that you never refer to them as illegal aliens? mr. legomsky: i have referred on occasion to people who are here illegally, but i don't like the phrase "illegal alien" because i

don't like that phrase to describe a person. the phrase "illegal alien" offends many people because you are defying an entire person by one act. rep. ratcliffe: so, to the chairman's prior question, is the issue here really a constitutional one or a budgetary issue? if we remove the limited resources question an issue, does this also weigh? mr. legomsky: that does tie-in. i don't think you can separate the two. whether this is constitutional depends on whether the president has justification for choosing the priorities he has. rep. ratcliffe: professor, i think i know your thoughts on judge haddon's issuing the injunction.

i missed some of your testimony. have you opined on whether you think the administration has violated the apa? mr. legomsky: i have. i do not believe they have violated the apa. the only argument made for why the apa might be thought to apply would be that they didn't involve the exercise of discretion. for all the reasons given in my written testimony, i think that there is no factual support for that conclusion. rep. ratcliffe: and your written testimony that was provided doesn't address the government's response in seeking a stay to that injunction. do you agree that the government is on solid legal footing? mr. legomsky: i do. stay is a discretionary judgment , but certain factors inform it. one is how likely you are to succeed on the merits and so on.

my own view is that it would make sense to grant it. rep. ratcliffe: can you explain to me, from your perspective how our federal government is harmed by not conferring benefits on what they refer to as third parties and what i would read her to -- what i would refer to as folks in this country illegally. can you explain how the government would be harmed? mr. legomsky: there are different harms. one harm is to the government's authority, given by congress, to establish policies and priorities. the other harm is that at this point, the government has already invested the resources in hiring adjudicator's and so on. that will eventually be recouped. but if that were to be shut down , this money would be wasted. in the meantime, the government

does have to continue its preparations to resume this on schedule. rep. ratcliffe: the government asserts, to your point, when these harms our weight against the injuries claimed by the plaintiffs, the balance of hardships tips in favor of the state. i hear you saying that you agree with that assertion. chairman gowdy: the gentleman from texas is out of time, but you can answer the question. mr. legomsky: i strongly disagree with the idea that texas is going to lose even one penny because of this. they never alleged that they are going to have to hire a single additional person to process these drivers license. it is a marginal cost. >> in fairness professor, if these folks were allowed to stay, they could apply for texas driver's licenses. each of those would come at a cost to the state of $130 per

license times hundreds of thousands of folks. chairman gowdy: as quickly as you can. i'm already two minutes over. mr. legomsky: while texas, to its credit, offsets that cost with revenues, it still comes out to a negative if that is all you take into account. what they don't take into account is that tax revenues will increase dramatically as a result. there's even been a study that finds the same thing to be true for the state of texas. they will gain quite a bit from this. the third thing is, if you adopt this, just think about what it would lead to. when a federal benefit is granted, someone could then apply for a state benefit, and every time uscis grants anything to anyone, the state can then

say we challenge that. surely, that is not what the doctrine was designed to accomplish. chairman gowdy: the chair will now recognize the gentleman from michigan. rep. bishop: thank you, mr. chair. it has been a very enlightening hearing. thank you for being here today. we've had several exchanges regarding this idea of prosecutorial discretion. as a former prosecutor, i appreciate the need for prosecutorial discretion when it comes to ensuring justice. that's the role of the prosecutor. however, what i do not understand in this context is how this remedy that has been created, deferred action, exceeds what we know as prosecutorial discretion, and how, professor foley, you

indicated that the president's immigration order is unconstitutional for three reasons. this was the second reason. the creation of deferred action. can you expound on that? tell me how it is different from ordinary prosecutorial discretion. ms. foley: it is a great question. deferred action is something that congress has authorized in specific statutes for specific populations in the past. there are some statutes that say that x, y, or z is entitled to deferred action. if a court looks at the grant of deferred action in another area, the court would say, the fact that congress clearly knows that deferred action has exists and has granted it necessarily implies that they don't intend to granted for a, b, and c. the other thing is that deferred

action has been granted administratively by the executive branch, on several occasions in the past. my written statement elaborates on four instances. for every single one of those except for the widower-widow one, all three of them involved a situation where congress had already passed a statute that gave this group legal status. deferred action was given administratively as a bridge until they could achieve the process. in those situations, you can see that granting administrative deferred action is perfectly consonant with congressional will. the waiter-widow one, i don't think, was legal. that was granted at a time when the applicable statute did not

grant that kind of deferred actions to widows or widowers. several months later, after that deferred action was granted congress amended its statute. at the time the grant of deferred action was taken, that statute did not exist. therefore i don't think you can say it was consonant with congressional will. once congress passed that statute, it was game over. the administration receded. that is all working correctly. we will never know whether that was legal or not. rep. bishop: thank you very much. professor blackman, is this something you can comment on as well? mr. blackman: absolutely. the memorandum said the key question, is the president acting in consonant with congressional policy? is congress acquiescing to this?

there are several instances in the past where congress has acquiesced, but in each case deferred action serves as a temporary bridge where there was some lawful status. ini will give you enter example, with hurricane katrina a lot of schools were shut down and they lost their status as foreigners. they said you can enroll in another university and you will not be enrolled in that time. that is a good example of deferred action. they lost their status in the new give it back to them later. what is happening here is there no plan for success. beneficiaries will not get anything, nothing. the only way they can get a visa is if there child turns 21 and they preempt a 10 year bar that gets waived. there is more of a tunnel to go

through the law which makes it inconsistent with congressional policy. >> thank you very much, the chair will now recognize the gentleman from iowa. >> i think all of the witnesses for perseverance here today in this long hearing. i want to make a broader point here and what is congress obligated to do under article three. i happen to read through debate and i began to ask this question, what we are obligated to do in article three is produce a supreme court of united states. we could conceivably abolish all

of the federal districts and the all a thing left would be the supreme court and the only obligation we have there is to have a chief justice, but we don't have to fund the building or the staff. that is what congress is obligated to do. i would suggest that article three is pretty limited if congress decides to assert its superiority. that was just an exercise in constitutional discussion. i just went down through article two, since the president is usurping article one authority what does the president of the united states have under article two. he is the commander and chief of the armed forces congress forms the armed forces and they may not exist, theoretically. he may require an opinion of the principal officers, he may but

there may not be departments for him to require an opinion of. he shall have power to grant pardons and reprieves. he has with the advice of the senate treaties and appointments but is subject to the authority of the united states congress. in the end the question goes to what enumerated powers does the president have independent of congressional approval. that turns out to be six. he may pardon, he shall deliver the state of the union, if it is not an address it might be a letter. he can send a letter to meet that requirement. he shall recommend legislation and does that without needing to be prompted. he may convene congress, he may adjourn that so may congress adjourn, and he shall receive ambassadors and ministers. that means the president shall be the head of state and conduct the functions of the head of state for medically --

diplomatically, and the last one is he shall take care that the laws are faithfully executed. the only two that have power at all is the power to pardon which could be significant but the power and the obligation to take care the law has been faithfully executed. i don't know that i've heard all argument about how the president might be doing that today. not only is he violating his own both of office, it is very clear that he had said i will not enforce the laws i don't want to enforce and congress, i will recommend legislation and if you don't pass it, i will implement it by my executive edict. i will take care that the laws i don't want to be executed are not, including a session that requires that those who are

interdicted by law enforcement shall be placed in removal proceedings and we have a president who says they shall not. he has ordered the executive branch to violate laws. some of this is not under litigation in the court case we are talking about but it is under litigation in the crane versus johnson case. so i would ask this question and that is, what if congress decided to usurp residential authority. if decided that the president isn't doing his job why don't we form a justice department and fund a justice department and direct an order a justice department. if congress decided to do that we could enforce these laws and what would be the consequences? >> it is a great question and i post this before the last time i testified before the committee regarding obamacare and delaying the employer mandate.

in the hypothetical was what if the speaker of the house decided to appoint himself commander in chief. it is the same idea, what if article two, it can supposedly usurp article two but article one cannot usurp article two. the point of this being prosecutorial discretion, ask yourself everybody on this panel agrees that the $6 million legal question is, is what the president is doing consonant with congressional well. you get control the statutes and he has to faithfully execute them. so what are you doing consonant with what you have directed pursuant to the ina. i think the answer is patently that it is not consonant with congressional will. so why didn't previous presidents think they had the authority to do this if this

was so politically palatable why didn't president clinton do it? why didn't present carter -- president carter do it? the reason they didn't is because no president thought they had the authority to do this which explains why the president went around 20 plus times and explained he didn't have the legal authority to do this. there is a place called utility air regulatory group that was decided last summer and in that case the supreme court said, one of the reasons why the rule violates separation of powers is because the epa is copy getting a regulation that flies in the face of years of understanding what the clean air act was thought to give to the epa. it is the same form of construction of congress's will

that should take place in the case as well. >> in the end it is the people who decide the division between the three branches of government and many to declare war on the enemies of the constitution. >> agenda men from ohio yields back his time and a general and from florida is recognized. >> professor, i want to make sure have this right, obama stated 22 times he didn't have the authority and you're saying he didn't have the authority to suspend all deportation? >> further than that he said his authority is limited and doesn't have it to spend on deportations. >> you deny he disclaimed he had the authority to do what he did in november am a correct? -- november, correct? >> yes. >> the president said i am not the emperor of yet it states my job is to execute the laws and congress has not changed what i

consider to be a broken immigration system. what that means is meant obligations to enforce the laws in place even though we think the results may be bad. we stretch our administrative flexibility as much as we can and quote. september 17, 2013, he said what we can do is carve out the dream folks and say people who have grown up here as americans we should welcome but if we brought in that then i would be ignoring the law in a way i think would be difficult to defend legally. that is not an option. so those are instances not where he is saying he cannot suspend everything or is specifically saying he reached his administrative limit. these are in response to questions that specifically he wanted to address, some of the classes of people he has now addressed with this latest executive action.

to say as you characterized that it is completely at variant with the facts and undermines your credibility. let me talk about the political statements versus legal statements. professor blackman i think you correctly point out in your testimony it is not just about the courts. congress has a role in the powers we have our political so when the president is saying these things, the idea that he is making political statements that don't matter -- most powerful check correct? so if an executive branch is acting in a certain way congress can always remove the funds so the executive cannot continue, right?

so that is perfectly legitimate that congress would restrict funding. >> yes. >> do you also think the advise and consent power the senate has is a legitimate check. where the president is putting someone in a position who was pledged to continue conduct that infringes on our authority that senators could use that a legitimate reason to deny? >> just six month ago, -- this is part of a very long trend where congress is get -- gridlock in the president finds ways to bypass it. >> the courts do have a role but it is a limited role and if it is the case that they will be disputes, that may not give rise to a controversy and may not be right for adjudication in the court. if you expect the courts to do everything then we are leaving a lot of authority out there that will essentially be uncontested if congress isn't willing to act. professor foley you mentioned

that the key issue is at the executive action is and consonant with the underlying law, isn't it the fact that the underlying law prohibits people who are here illegally from having lawful employment? >> yes and the only way this group are granted work authorization is because the obama administration has decided to unilaterally grant them for action -- which again, that deferred action remedy is something that congress has not specified for this population. >> and the statute prompt administrative action or executive memos or anything like that. so congress has said very clearly to prohibit unemployment and now what president is saying is absolutely in conflict with congress. in terms of somebody being harmed by this, if the president issues these work permits and the background is that people

were here illegally are under the employment mandate, if i am an american citizen applying for a job and 70 here has a work permit with the same skills qualified for the same wage, the person who is here illegally would be cheaper for the business to higher because they do not have to provide obamacare and they would for an u.s. citizen. so in that instance would a u.s. citizen have the potential to bring a lawsuit challenging that? >> it is possible though in terms of standing what the affected citizen would have to establishes but-for, the aca eligibility -- >> let's assume the employer said i'm saving $3000 so i would've hired you. >> yes i think you could establish standing. >> i yield back. >> on behalf of all of us, this concludes the hearing.

we want to thank our four panelists for your collegiality with members of the committee and your collegiality with one another. it has been very educational and it felt like we were back in law school. most of us will be waiting on our c minus grades. without objection, all members will have five legislative days to submit additional legislative watches for witnesses. with that again, our thanks to each of you and we are adjourned.

negotiations continue off the floor on a house passed spending bill. the senate today will see the bill with these provisions but they are expected to be removed under majority leader mitch mcconnell. he plans to bring up a separate bill on the president's immigration orders. coming up, a house debate on the education reform bill. then the general briefs reporters on nato operations in ukraine. later, john chambers speaks about the digital transformation of cities and countries around the world. and the retired general in

charge of the international coalition to combat isis speaks on that strategy before the u.s. foreign relations committee. senate majority leader mitch mcconnell is planning to introduce a homeland security spending bill which will block the executive order. on the next "washington journal" we will get congressional reaction. at 7:45 a.m., oklahoma senator james lankford will join us to talk about the subject and half an hour later the democratic congressman xavier becerra. our show is live at 7:00 a.m. est. >> keep track of the republican-led congress and follow the new members to the

first senate -- session. new members, best access on c-span c-span 2, c-span radio and c-span.org. >> now represented it's considered two education bills on the floor today. one will continue to change the 1965 elementary education act to the year 2021 and will eliminate the no child left behind law giving that authority to the states. here is the floor debate. the gentleman is recognized. mr. kline: this week we have an opportunity to advance bold reforms that will strengthen k-12 education for children across america. a great education can be the great equalizer. it can open doors to unlimited possibilities and provide students the tools they need to succeed in life. every child in every school deserves an excellent education. yet mr. chairman, we are

failing to provide every child that opportunity. today, approximately one out of five students drop out of high school. and many who do graduate are going to college or entering the work forest with a sub-- the work force with a subpar education. the number of students proficient in reading and math is abysmal. the achievement gap is appalling. parents have little to no options to rescue their children from failing schools. a broken education system has plagued families for decades. year after year, policymakers lament the problems and talk about solutions and once in a while a law is enacted that promises to improve our education system. unfortunately, past efforts have largely failed because they're based on the idea that washington knows what's best for children. we've doubled down on this approach repeatedly and it is not working. federal mandates dick kate how to gauge student achievement, thousand define qualified teachers, how to spend money at the state and local levels and

how to improve underperforming schools. and now, thanks to the unprecedented overreach of the current administration, the department of education is dictating policies concerns teacher evaluations, academic standards and more. no one questions whether parents, teachers and local education leaders have committed to their students yet there are some who question whether they are capable of making the best decisions for their students. success in school should be determined by those who teach inside our classrooms, by administrators who understand the challenges facing their communities, by parents who know better than anyone the needs of their children. if every child is going to receive a quality education, we need to place less faith in the secretary of education and more faith in parents, teachers, and state and local leaders. that's why i'm a proud sponsor of the student success act. by reducing the federal footprint restoring local control and empowering parents and education leaders,

commonsense bill will move our country in a better direction. . this provides school districts more flexibility. the legislation eliminates dozens of ineffective or duplicative programs so each dollar makes a direct, meaningful and lasting impact in classrooms. the bill strengthens accountability by replacing the current national scheme with state-led accountability systems. returning the states the responsibility to measure student performance and improve struggling schools. the student success act also ensures parents have the information they need to hold their schools accountable. it's their tax money, but more importantly, it's their children. and they deserve to know how their schools are performing. the bill reaffirms the choice is a powerful life line for families with children in failing schools by extending the magnet school program expanding access to high quality charter schools and allowing federal funds to

follow low-income students to traditional public or public charter school of the parents' choice. finally, the student success act reins in the authority of the secretary of education. we must stop the secretary from unilaterally imposing his will on schools and this bill will do just that. perhaps, mr. chairman, that is why the white house and powerful special interests are teaming up to defeat this legislation. they fear the bill will lead to less control in washington and more control in states and school districts. let me assure the american people that is precisely what this bill will do. i urge my colleagues to help all children regardless of background income or zip code, receive an excellent education by supporting the student success act and i reserve the balance of my time. the speaker pro tempore: the gentleman from minnesota reserves. the chair recognizes the gentleman from virginia. mr. scott: i yield myself such time as i may consume. i rise in -- raise in strong

opposition to this bill. a landmark civil rights law enacted under president lyndon b. johnson, as we approach the 50-year anniversary of its enactment, we cannot take lightly the goals and achievements over five decades. it is by that we must measure our education system today. we all know too well that quality education is even more vital today than it was generations ago. and our rapidly changing economy, our nation's continued success depends on a well-educated work force. a competitive and educated work force strengthens the very social fabric of america. people with higher levels of education are less likely to be unemployed, less likely to need public assistance less likely

to become a teen parent, less likely to get caught up in the criminal justice system. over the course of the history, we recognize that for many politically disconnected populations, access to equitable -- equitable access to an education has not been a reality. it is -- it was necessary for the federal government to fill in the gaps of funding our public school systems. inequality was inevitable. when most school systems are funded by real estate taxes. and further by the virtue of the fact that in our democratic society we respond to political pressure. over 50 years congress has recognized that low-income students were not getting their fair share of the pie and that supplemental resources were absolutely necessary to ensure that all children had access to quality public education. as a result congress has a longstanding policy to target our limited federal funding to

schools and students who get left behind in an unequal system. one of this bill's most troubling provisions, which strikes at the heart of the long history to target resources to our neediest students, is the so-called portability provision. now present law gives greater weight to funding in areas of high concentration of poverty. under h.r. 5, portability, a state agency could use all of its title 1 funds to districts based solely on the percentage of poor children regardless of the concentration of poor people in a district. as a result much of the title 1 support, intended toward those areas of concentration of poverty, would be reallocated to those wealthier areas. in other words, the low-income areas would get less, the wealthy areas would get more. i ask if that's the solution i

wonder what you think the problem was. but analysis from a number of organizations including the department of education, demonstrates the title 1 portability will take money from the poorest schools and school districts, and give more to affluent districts. this disproportionately affects students of color and this is just simply wrong. data shows that h.r. 5 boo whoa provide the largest -- would provide the largest 33 school districts with the highest concentration of black and hispanic students over $3 billion less in federal funding than the president's budget over the next six years. furthermore the center for american progress found in its review of portability the districts with high concentration of poverty could lose an average of $85 pursuant to while the more affluent areas would gain more than $290 pursuant to. there's an overwhelming body of research -- per student. there's an overwhelming body of research that shows school

districts with the highest poverty are mitigated in a certain way. this targets funding to schools where there's a greater concentration of poverty and this bill rolls the clock back and reverses that. to add insult to injury, h.r. 5 eliminates what's called maintenance of effort. a requirement of e.s. -- esca that states maintain their effort and federal money will supplement what they're doing. as a result of this bill, states could use their education funds to fund tax cuts or other noneducation initiatives. thus turning esca into a glorified slush fund where politicians could -- where politics would drive funding allocations. we know who's going to lose when politics are at play. our children. there are other flaws with h.r. 5. this bill sets no standards for college or career readiness and allows students with

disabilities to be taught with lesser standard stds. it limits our investment in education -- standards. it limits our investment insteadcation over the next six years because there's no adjustment for inflation. it block grants important programs, diluting the purpose and the outcome. taken as a whole, these policies will have a disproportion impact on students of color students with disability and our english language learners. it's no wonder that business groups, labor groups, civil rights disabilities and education groups have all expressed deep concerns about this legislation. mr. speaker, i stand in strong opposition to h.r. 5, as it will turn the clock back on american public education. in its current form the bill abandons fundamental principles of equity and accountability in our education system. it eviscerates education funding, fails to support our educators and leaves our children ill-prepared for success in the classroom and beyond. i therefore urge my colleagues to vote no on this bill and i

reserve the balance of my time. the chair: the gentleman from virginia reserves. the chair recognizes the gentleman from minnesota. mr. kline: thank you, mr. chairman. it is now my great pleasure to recognize the chairman of the subcommittee on early childhood elementary and secondary education, the gentleman from indiana, mr. rokita, for four minutes. the chair: the gentleman from indiana is recognized for four minutes. mr. rokita: i thank the chair and i thank the chairman for his great leadership on this bill and in the committee generally. i stand in strong support rise this afternoon because every student mr. chairman, every student deserves an effective teacher an engaging classroom and a quality education. that paves the path for a bright and prosperous future. that's what we all want. unfortunately, despite the best of intentions, the nation's current k-12 education law has failed to provide students this fundamental right.

in fact, the law has only gotten in the way. far from taking us back to the past, this bill will take us to the future where we should have been for a while now in terms of education. so that we can maintain competitiveness with the rest of the world and win in the 21st century. no child left behind's onerous requirements and the obama administration's waiver scheme and pet projects has created a one-size-fits-all scheme. as a result, too many young adults live high school today without basic knowledge of reading, math, science, they're ill-equipped to complete college and compete in the work force and consequently they're deprived of one of the best opportunities they have, to earn a lifetime of success. we shouldn't shackle any student to that kind of future. americans have settled for the status quo for if a too long and today we have an opportunity to chart the new course. the student success act departs from the top-down approach that has inefficiently and

ineffectively governed education and restores that responsibility to its rightful stewards -- parents, teachers, state and local education leaders the local taxpayers. first, the bill gets the federal government out of the business of running our schools. it eliminates the dizzying maze of federal mandates that has dictated local decisions and downsizes the bloated bureaucracy at the department of education that has focused on what washington wants rather than what students need. the whole theme of this bill is that we trust teachers, parents, local education officials and our local taxpayers much more than we would ever trust a federal bureaucrat. i find it funny that the other side, those that are against this bill actually cited the department of education in arguing what a bad bill this is. imagine a federal bureaucrat actually arguing to devolve its power back to its rightful owners. of course they're going to be for the status quo.

they benefit from the status quo. the students do not. second, the bill empowers parents and education leaders with choice, transparency and flexibility. it ensures parents continue to have the information they need to hold schools accountable and helps more families escape underperforming schools by expanding alternative education options such as quality charter schools. it also provides states the flexibility to develop their own systems for addressing school performance and the autonomy to use federal funds in the most efficient way. and this bill respects, mr. chair, that it's the people's property, it's their tax dollars. we shouldn't be forcing any kind of maintenance of effort requirement on states or local jurisdictions. it's their decision to decide what to do with their money. with the student success act, we have an opportunity to overcome the failed status quo of high stakes testing and federal waivers. we have the opportunity to redules the federal footprint in the nation's classrooms. we also have the opportunity to

signal to people that we trust them to hold schools accountable for delivering a quality education to every child. as my good friend, former colleague, and fellow hoozier, governor mike pence, said before the committee earlier this month there's nothing that ails education that can't be fixed by giving parents more choices and teachers more freedom to teach. and that's exactly what this bill does. this bill fosters an environment to accomplish that very thing. so i urge my colleagues to join me in replacing a broken law with much-needed commonsense education reforms and ask you to vote yes, yes, on the student success act. with that i yield back. the chair: the gentleman's time has expired. the gentleman from minnesota reserves. the chair recognizes the gentleman from virginia. mr. scott: mr. chairman, i yield one minute to the gentlewoman from oregon a member of the committee on education and work force, ms. bonamici. the chair: the gentlewoman from oregon is recognized for one minute. ms. bonamici: thank you, mr. chair. thank you, mr. ranking member,

for yielding. there is overwhelming bipartisan consensus that we need to replace no child left behind. and there's overwhelming bipartisan consensus that a rewrite of no child left behind should promote local flexibility and support schools not punish them. so i'm deeply disappointed that the house has not come together to produce a bipartisan bill. despite a common goal and a long history of settinging aside differences -- setting aside differences to work together on this important legislation, this bill does not adequately support america's students. unfortunately the student success act shifts resources away from communities where poverty is most concentrated and freezes fundinging for america's most needy -- funding for america's most needing students at a time when public school enrollment is on the rise and more than half the students come from low-income families. h.r. 5 does not support a well-rounded education for all students. does not ensure college and career ready standards. for all students. and does not promote equal after-school programs and does not redo enough to reduce emphasis on high stakes tests.

the original goal was audible, equity. and it deserves a full review by the house so we can implement thoughtful solutions that reflect the current needs in our schools. but this bill does not protect historically underserved students. i oppose this act and i ask my colleagues to do the same. we need a law that is serious about addressing the challenges educators and students face today. thank you mr. chairman, i yield back. the chair: the gentlelady's time has expired. the gentleman from virginia reserves. the chair recognizes the gentleman from minnesota. mr. kline: thank you, mr. chairman. i now would like to yield three minutes to the gentleman from texas, who has been active in this bill mr. culberson. >> mr. -- the chair: the gentleman from texas is recognized for three minutes. mr. culberson: thank you, mr. speaker. i want to ask that the -- if i could for the chairman of the early childhood, elementary and secondary education committee engage in a colloquy with me concerning the importance of ensuring the federal government does not interfere with states' rights over public education. .

mr. kline: i would be happy to engage in that colloquy. mr. culberson: mr. speaker, i believe there's no constitutional role for the federal government in education. however, i understand that it's a function of this act to accept it voluntarily by each state but i'm concerned that state bureaucrats often accept the funds without any input from our local elected officials. i saw this in the texas house. i'm pleased that the gentleman from indiana and chairman kline worked with me to protect the 10th amendment and be sure that states knowingly accept the strings attached to these programs before receiving funding under this bill. i want to be clear that this provision simply ensures that locally affected officials and parents have the opportunity to stand up and voice concern or support for accepting federal funding at their state capital before unelected, unaccountable bureaucrat can accept that money and all the strings that come

with them. i wanted to ask if the chairman concurs that this is the intent and result of the language you've included in the student success act. >> i thank the gentleman for yielding. let me thank my colleague from texas for his leadership on this important issue. i understand and appreciate your concern about this federal role in education policy. that is why we were happy to include your amendment in the underlying bill. it made the bill stronger and gave another tool to parents and local officials to protect their rights when it comes to educating our children this amendment in combination with other strong provisions to rein in the secretary including an absolute ban on his ability to force any state to accept any common core standards or other standards ensures the federal government cannot dictate what is taught in schools what assessments or given or what standards are used. this ensures that states willfully accept the limited requirements with these funds and reaffirms what decisions should be left to the states. i thank the gentleman for

offering this and i yield back to the gentleman. mr. culberson: i want to thank you for protecting the 10th amendment rights of the states to control their school system and i affirming a parent's right to control their child's education. it means a far gater role for states and parents in a child's education. i yield back. the chair: the chair recognizes the gentleman from virginia. mr. scott: i yield one minute to the gentleman from connecticut a member of the committee on education and work forest, mr. courtney. the chair: the gentleman is recognized for one minute. mr. courtney: i hate to throw cold water on the last colloquy but i think it's important to know as we debate this bill that never had the benefit of any public hearing is that the federal mandate for annual testing doesn't change in this law. what does change is the

dedicated funding stream which congress had the decency to pass in 2002, is eliminated. you're maintaining a mandate and eliminating the funding to pay for that mandate for testing. what we're ending up with, for all the talk about reducing the federal footprint is that we're doubling down on the federal requirement that states have to have annual testing in schools which every member in this chamber has heard about in loud protests over the last 13 years. what this shows is that when the process is broken and it was broken in this case, no committee, subcommittee meetings new york hearings, rushing it to the floor, on a hyper partisan basis not one single democratic amendment was accepted at the committee in markup, what you end up with is a deformed bill which should be defeated and i urge in the strongest terms possible, a no vote. let's do this the right way. i yield pack. the chair: the gentleman's time has expired.

the chair recognizes the gentleman from minnesota. mr. kline: i thank the chair and yield myself one minute. the chair: the gentleman is recognized. mr. kline: just to address the notion of what's done in secret and what's not done in secret and whether or not people have had a chance to weigh in on this legislation. as my friend knows, and i do thank him for not mentioning basketball by the way as my friend knows, this bill has been, we've had multiple hearings other several years, it's been debated in committee, been debated on the floor of the house, it's much discussed and mump known. in contrast to the bill, the amendment, the substitute that my friends and colleagues on the other side of the aisle brought forward in committee 851 pages that nobody had seen outside the democrat caucus. so i believe this bill is well known and it is the right direction to move us forward into the future to make sure that all of our children receive the quality education they deserve and i reserve.

the chair: the gentleman reserves. the chair recognizes the gentleman from virginia. mr. scott: thank you mr. chairman. i yield myself 30 seconds just to respond. the chair: the gentleman is recognized. mr. scott: to the idea that our substitute was produced. i apologize to the gentleman for having sprung the substitute on him however, two legislative days after his bill was introduced, he scheduled a markup on the bill and so we produced a response to his bill in two legislative days and that's all the time we were allowed, we would have allowed hearings, we would have liked hearings on his bill and our bill. but that just wasn't to take place because of the rush to judgment. i yield now three minutes to the gentlelady from ohio, the ranking member of the early childhood, elementary, and secondary education subcommittee, ms. fudge. the chair: the gentlelady is recognized. ms. fudge: thank you very much,

thank you, mr. chairman. i strongly oppose h.r. 5 the student success act. the elementary and secondary education act reaffirmed the supreme court decision's in brown vs. board of education that every child has the right to an equal educational opportunity. h.r. 5 undermines the laws -- the law's original intent, turning back the clock on ex-- equity and accountability on american public education. as we commemorate the 50th anniversary of esca republicans have chosen to honor the anniversary by bringing a partisan bill to the house floor that tears apart the historic federal role in education. h.r. 5 should be known as the ensure students don't succeed act. the bill is a backward leap in our country's education system, not a forward one. every student in america has a right to a quality education. it is our job as members of congress to make sure that right

is protected. something that h.r. 5 does not do. i refuse to fail our children and their families because our children deserve so much more than this legislation provides. i yield back. the chair: the gentlelady yields. the gentleman from virginia reserves. the chair recognizes the gentleman from minnesota. mr. kline: thank you, mr. chairman. i'm very, very pleased now to yield to the chair of the subcommittee on higher education and work forest training, the distinguished gentlelady from north carolina, ms. foxx four minutes. the chair: the gentlelady from north carolina is recognized for four minutes. ms. foxx: i thank the chairman of the committee and i thank the chair for the recognition. mr. chairman, the current k-12 education system is failing our students and state and local attempts to make it better have been hampered by an enormous federal footprint.

parents and education leaders have lost much of their decision making authority to washington bureaucrats and the secretary of education has bullied states into adopting the obama administration's pet projects. unsurprisingly, student achievement levels remain worrisome. just 36% of eighth grade students read at grade level and only 35% are proficient in math. for far too long, our schools have been governed by a top-down approach that stymies state and local efforts to meet the unique needs of their student populations. we can't continue to make the same mistakes and expect better results. americans -- america's students deserve change. fortunately, this week, the house of representatives has an opportunity to chart a new course with student success act. legislation that reduces the federal footprint in the nation's classrooms and restores control to the people who know their students best. parents, teachers, and local leaders. the student success act gives washington -- gets washington

out of the business of running schools protects state and local autonomy by prohibiting the secretary of education from coercing states into adopting common core or other common standards and assessment and by preventing the secretary from creating additional burdens on states and school districts. the bill reduces the size of the federal bureaucracy. currently the department of education oversees more than 80 programs geared toward primary and secondary education. most of which are duplicative and fail to deliver adequate results for students. the bill eliminates over 65 of these programs and requires the secretary of education to reduce the department's work forest accordingly. the students success act repeals onerous one size fits all mandates that dictate accountability, teacher quality and local spending that have done more to tie up states and school districts in red tape than to support education efforts. it returns responsibility for classroom decisions to parents, teachers, administrators and

education officials. the bill also provides states and school districts the funding flexibility to efficiently and effectively invest limited taxpayer dollars to boost student achievement by creating a local academic, flexible grant. it provides the public with greater transparency and accountability over the development of new rules affecting k-12 students. education is a deeply personal issue. after years as secretary of education running schools through executive fiat, we understand that people are concerned about what a new law k-12 education law will do. that is why a number of key principles have guided our efforts to replace the law since we began the process more than four years ago resm deucing the federal footprint restoring local control and empowering parents and education leaders. those principles are reflected throughout the legislation including specific safeguards

that protect the right of states to opt out of the law as well as the autonomy of homeschools, religious schools and private schools. organizations such as the council for american private education, homeschool legal defense association and committee on catholic education of u.s. conference of catholic bishops have expressed support for the student success act because they know it will keep the federal government out of their business and preserve their cherished rights. a host of administration bureaucrats are attempting -- is attempting to defeat these much needed changes. they know each reform that returns fleblingsability and choice to parents and school boards represent a loss of pow for the d.c. it's time we put the interests of america's students above the desires of washington politicians. by reversing the top of down policies of recent decades -- the chair: the gentlelady is given an additional minute. ms. foxx: the student says sess act offers conservative solutions to repair broken

education system. it would finally get washington out of the way and allow parents, teachers, and state and local education leaders the flexibility to provide every child in every school a high quality education. i yield back the balance of my time. the chair: the gentlelady from north carolina yields back. the gentleman from minnesota reserves. the chair recognizes the gentleman from virginia. mr. scott: mr. chairman, i yield one minute to the gentlewoman from california, a member of the committee on education and work forest, mrs. davis. the chair: the gentlelady from california is recognized for one minute. mrs. davis: thank you ranking member scott. i have to ask the majority, when did local control come to mean spend federal dollars but ditch the federal oversight? during our markup last week, and i certainly heard today, member after member arguing how removing federal standards would help local leaders make tough decisions. this is absolutely backwards. for nine years, i served on the second largest school board in

california, the sixth in the nation. and i distinctly remember every school in the district making a compelling case for ex-para-- extra resources which is why, frankly, we should be debating how to increase the size of the pie that goes to education rather than only arguing on how to cut it up. i still remember particularly one board meeting agonizing over the decision to move money from one needy school to another. we had to cut our budget and we had to make a decision. in the end, the law and the safeguards around title 1 helped direct us to make sure the money went to the students that needed it most. the chair: the gentlelady's time has expired. mrs. davis: ultimately the direction in the law helps us balance competing needs i urge opposition to the bill. the chair: the chair recognizes the gentleman from minnesota. mr. kline: thank you, mr. chairman. we are looking for additional speakers who may or may not make

it. i know you have additional speakers,'8" reserve. the chair: the gentleman from minnesota reserves. the chair recognizes the gentleman from virginia. mr. scott: i yield one minute to the gentleman from california, a member of the committee on education and the work force, mr. takano. the chair: the gentleman from california is recognized for one minute. mr. takano: i thank the gentleman from virginia for yielding time. mr. speaker, i rise today in strong opposition to h.r. 5 also known as the student success act. having spent 24 years as a classroom teacher, i'm especially concerned about the title 1 funding mechanism in this legislation. we have seen time and time again that block grants often redirect funding away from intended populations and are a prelude to further cutsism also oppose the republican bill's portability provision which betrays the original intent of the elementary and secondary education act. esca is meant to promote

equitable opportunity and education for all and to help raise the academic achievement of low income children. this legislation will do the opposite. finally irk objects to the utter lack of federal accountability in h.r. 5. while i oppose the current test-driven, high stakes accountability system, i want the right accountability system not no accountability system. mr. speaker, this legislation goes too far. it cuts too deep and takes too many steps backwards i oppose h.r. 5 and call on my colleagues to do the same. the chair: the chair recognizes the gentleman from minnesota. . mr. kline: thank you. i yield myself such time as i may consume. i just wanted to address this issue of grants and block grants and so forth, we're starting to hear a little bit about. i've been hearing for years, as i talk to superintendents in minnesota and around the country their frustration with

the maze of federal programs, 80 some federal programs, each with a soda straw of funding and requirements for action and reporting. and they told me again and again they'd say, i've got money here and don't need it there. i need money here and i can't move that money. i don't have the flexibility to move that money. i need to be able to put the resources where my students need it. and so by eliminating 65 of those soda straws of individual controls and giving that flexibility to superintendents, we allow the money to be spent where it's needed the most. i think that's one of the great strength of this bill and -- strengths of this bill and it's one of the reasons why the american association of school superintendents does support this legislation. i reserve. the chair: the gentleman reserves the balance of his

time. the chair recognizes the gentleman from virginia. mr. scott: mr. chairman, i yield to the gentleman from wisconsin, a member of the committee on education and work force mr. pocan, one minute. the speaker pro tempore: the gentleman from -- the chair: the gentleman from wisconsin voiced for one minute. mr. pocan: thank you, ranking member scott. mr. speaker, this bill breaks the promise made 50 years ago to help all kids get a good quality public education and to recognize the challenges faced by kids living in poverty. when talking about the problems with this republican bill, one wonders where to start. is it the tearing apart of public education that comes in the form of dismantling title 1 funding? or the fact that the portability scheme is a slip arery slope -- slippery slope turning our public school system into one big taxpayer funded voucher program with public dollars spent to private schools? or the fact that republicans have failed to dreals the need for early ed -- address the need for early education or the maintenance of efforts for

education? or that this bill diminishes the focus on professional development for teachers or the clear protections for collective bargaining agreements that are already a part of state laws? or that this bill provides insufficient funding, lower than what the title 1 authorization for last year was authorized under the current law? this bill doesn't provide real student success mr. speaker. the chair: the gentleman's time has expired. the gentleman from virginia reserves. the chair recognizes the gentleman from minnesota. the gentleman from minnesota reserves. the chair recognizes the gentleman from virginia. mr. scott: mr. chairman, i yield the gentlewoman from massachusetts ms. clark, a member of the committee, one minute. the speaker pro tempore: the gentlelady from -- the chair: the gentlelady from massachusetts is recognized for one minute. ms. clark: i thank the gentleman for virginia for yielding. mr. chairman, the elementary and secondary education act was passed 50 years ago to embody the promise that education is a right, not a privilege. we are supposed to be guardians

of that promise. not the architects of its demise. this re-authorization was an opportunity for congress to delve in and debate the most pressing issues facing our schools. sadly, the republican majority chose to introduce a partisan bill behind closed doors without a single public hearing. now we have a bill that reflects that lack of inclusion, takes hundreds of millions of dollars from our most vulnerable children and weakens the safeguards that govern taxpayer money. when i served on my local school committee, a tough economy meant some really difficult decisions. not everyone was happy, but we listened. we listened to teachers administrators, parents, students, experts and fiscal watchdogs. and we were guided by one simple principle -- what's best for our students? it's a shame congress couldn't find the will to do the same. i urge my colleagues to reject h.r. 5.

the chair: the gentlelady's time has expired. the gentleman reserves. the chair recognizes the gentleman from virginia. mr. scott: mr. chairman, i yield to the gentlewoman from north carolina, a former college professor and now a member of the committee on education and work force, ms. adams, one minute. the chair: the gentlelady from north carolina is recognized for one minute. ms. adams: thank you, ranking member scott. mr. speaker, i rise in opposition to h.r. 5. two weeks ago our committee came together expecting to seriously consider this bill, but instead republicans said no. no to moving beyond the status quo, no to investing in the futures of our kids, no to supportinging our teachers and principals, and no to ensuring the success of our neediest students. guess what? you said yes to taking money from our poor students like robin hood in reverse, yes to erasing the gains we've made over the past 50 years and yes to denying student success. this bill ignores the obvious needs of our students, turns its back on some of our most vulnerable. i hope we're not fooled by the name of the bill. student success is a failure.

it's clearly -- it clearly sets up our students to fail. h.r. 5 fails on all accounts. it fails our neediest students, it fails to invest in our teachers and our principals. it fails to prepare students for college and careers. this bill deserves an f. i urge my colleagues to vote no. the chair: the gentlelady from north carolina yields. the gentleman from virginia reserves. the gentleman from minnesota reserves. the chair recognizes the gentleman from virginia. mr. scott: mr. chairman, could you advise how much time is available on both sides. the chair: the gentleman has 16 minutes remaining. 15 minutes, excuse me. mr. scott: and the gentleman from minnesota? the chair: 13 minutes. mr. scott: thank you. mr. chairman, i'm pleased to recognize the gentleman from rhode island, a former mayor, mr. cicilline, for one minute. the chair: the gentleman from rhode island is recognized for one minute. mr. cicilline: i thank the gentleman for yielding. it's our responsibility to provide america's young people with every opportunity to obtain a world class education in the best possible environment so they can compete in an increasingly global

economy. that's why it's critical that we re-authorize esca the right way. schools and educators deserve certainty, continuity and direct -- grex. based on new research -- direction. based on research. and students deserve the best education we can provide. but h.r. 5 is not the right way to do it. h.r. 5 would freeze funding at current levels for six years, representing over $800 million in cuts compared to pre-sequester funding. by funding programs with block grants and introducing title 1 portability this fails to support greater acheekment of low-income students students of color students with disabilities and english language learners. this fails students in so many ways. we should be working together to ensu ae-thiz cprestu hiemt,uprttehe and principals and provides high-quality education for all students. this bill does not accomplish this and i urge my colleagues to vote no. i yield back the balance of my time. the chair: the gentleman's time

has expired. the gentleman from virginia reserves. the gentleman from minnesota reserves. the chair recognizes the gentleman from virginia. mr. scott: thank you mr. chairman. mr. chairman, i yield two minutes to the gentlewoman from connecticut, the ranking member on the appropriations subcommittee on labor, health, human services and education, ms. delauro, two minutes. the chair: the gentlelady from connecticut is recognized for two minutes. ms. delauro: thank you. upon signing the original elementary and secondary education act, president johnson described education as quote, the only valid passport from poverty. this bill threatens to tear up that passport. it caps federal education funding at 2015 levels, levels which are already woefully inadequate after years of drastic cuts. makes no provisions for inflation. let alone growing need for federal education programs. the bill allows states to direct federal dollars away from schools in districts with the greatest poverty. it permits states to reduce education funding with no

accountability. it allows schools in wealthier neighborhoods to use title 1 funding without having to target funds to the students with the greatest needs. it is a blatant betrayal of the esca's fundamental purpose which is to level the playing field for low-income kids. it weakens or eliminates many successful programs, 21st century community learning center initiative, provides quality after-school, summer school programs for disadvantaged children. mr. speaker, it used to be that hard work in school and on the job was the surest ticket to the middle class. today that compact is broken. millions of hardworking families do not earn enough to make ends meet. let alone move up in the world. the cuts proposed in this bill would make matters even worse. kids from poor neighborhoods are already being neglected. while those from wealthy areas get an ever-increasing slice of the pie. these disparities reverberate throughout their lives, they create an incorrespondencing -- increasingly divided, unequal society. let me put it simply.

without broad access to quality education, there is no future for the middle class. with this legislation, the majority are saying to america's low-income kids, you are on your own. mr. speaker, that is not who we are. i urge my colleagues to vote against this bill. the chair: the gentlelady's time has expired or yields. the gentleman from virginia reserves. the chair recognizes the gentleman from minnesota. mr. kline: thank you, mr. chairman. now i'm very pleased to yield to a new member of the committee the gentleman from michigan, two minutes. the chair: the gentleman from michigan is recognized for two minutes. >> thank you, mr. speaker. and i thank the gentleman for yielding. mr. speaker, i rise today in support of h.r. 5, the student success act. because our system -- education system is failing. where i come from we call trying to do things over and over again and expectinging a