Transcripts For CSPAN3 President Obamas Executive Action On Immigration 20150307

Good morning. The Judiciary Committee will come to order, and without objection the chair is authorized to declare recesses of the committee at any time. We welcome everyone to this mornings hearing on the unconstitutionality of president obamas executive actions on immigration, and ill begin by recognizing myself for an opening statement. Last november president obama announced one of the biggest constitutional power grabs ever by a president. He declared unilaterally that by his own estimation almost 5 million unlawful aliens would be free from the legal consequences of their lawless actions. Not only that, by granting them deferred action, he would bestow upon them benefits such as legal presence, Work Authorization, and access to the Social Security trust fund and the earned income tax credit. President obama took these actions despite having stated over 20 times in the past that he didnt have the constitutional power to take such steps on his own. As the washington posts own fact checker concluded, apparently hes changed his mind. The constitution is clear. It is Congress Duty to write our nations laws, yet president obama admitted that i just took an action to change the law, quote unquote. The constitution is also clear that once laws are enacted, it is the president s responsibility to enforce them. The constitution requires the president to take care that the laws be faithfully executed. Yet the very integrity of our Immigration Laws is now in question. 26 states believe that president obamas actions would cause them irreparable harm. They challenged his grant of deferred action in Federal District court in texas. The court agreed with the states and has granted a temporary injunction halting for the moment the administrations plans. The court stated that the administration is, quote, not just rewriting the laws, it is creating them from scratch. President obama has justified his actions under the guise of prosecutorial discretion. Law enforcement agencies do have the inherent power to exercise prosecutorial discretion. The authority as to whether to enforce or not enforce the law against particular individuals. However, telling entire classes of millions of unlawful aliens they face no possibility of being removed is not prosecutorial discretion. It is simply an abdication of the executive branchs responsibility to enforce the laws. The president relies on a memo prepared by his justice Departments Office of Legal Council to attempt to justify his actions as constitutional. But that very memo finds that, quote, immigration officials, discretion in enforcing the laws is not unlimited. Limits on Enforcement Discretion are both implicit in and fundamental to the constitutions allocation of governmental powers between the two political branches, end quote. The memo admits that the executive cannot under the guise of exercising Enforcement Discretion attempt to effectively rewrite the laws to match its policy preferences. And the memo quotes the Supreme Courts heckler versus cheney decision in stating that the executive branch cannot, quote, consciously and expressly adopt a general policy that is so extreme as to amount to an abdication of its statutory responsibilities, end quote. The memo, in fact, is an indictment of president obamas actions. The federal court in texas agrees, it found that the grant of deferred action, quote, does not simply constitute inadequate enforcement, the government here is doing nothing to enforce the removal against a class of millions of individuals. And the grant of deferred action does not represent mere inadequacy, it is complete abdication, end quote. And the court points out that president obamas actions go beyond even utter nonenforcement. He is, in fact, granting affirmative benefits to the aliens as i described earlier. In absolutely no way can president obamas action be considered a justifiable use of the administrations powers of prosecutorial discretion. Theyre a clear violation of his constitutional responsibility to faithfully execute the laws. The president also mistakenly claims that his actions are nothing new. It is true that previous president s of both parties have provided immigration relief to groups of aliens. However, most often the actions were based on emergencies in foreign countries, therein relying upon the broad constitutional power given to a president to conduct foreign affairs. For example, Chinese Students were protected from deportation after the Tiananmen Square massacre of 1989. What about president george h. W. Bushs family fairness policy which the white house cites to justify its power grab . This grant of voluntary departure was, in fact, authorized by the immigration and naturalization act as it existed at the time. Without any crisis in a foreign country, to justify his actions, and in granting deferred action without any statutory authorization, president obama has clearly exceeded his Constitutional Authority. No administration has so abused and misused the power of prosecutorial discretion as has the Obama Administration. By assuming legislative power, the Obama Administration is driving full speed ahead to a constitutional crisis, tilting the scales of our three Branch Government in his favor and threatening to unravel our system of checks and balances. This administration has entered the realm of rewriting the laws when it cant convince congress to change them. The house of representatives has taken Decisive Action this year to protect the constitution. We have passed a department of Homeland Security appropriations bill that would defund a series of unconstitutional actions of the Obama Administration, including this grant of deferred action. Tragically the house passed bill is being filibustered in the senate, even as appropriated funds for the department are set to run out at the end of the week. By not even allowing the bill to be debated, those senators who have chosen the path of filibuster and obstruction are threatening dhs access to funds designed to keep americans safe. They are also denying the American People a fair debate on this vital issue of whether Congress Needs to take action to protect all our constitutional liberties. We can only hope that they will relent in time. I look forward to todays hearing and the testimony of our witnesses and it is now my pleasure to recognize the Ranking Member of the committee, the gentleman from michigan, mr. Conyers, for his opening statement. Thank you, chairman and to our witnesses. Members of the committee in three days the department of Homeland Security will run out of funds. While tens of thousands of federal government workers could be furloughed, around 200,000 workers will be forced to come back to work without receiving a paycheck. They will be told to patrol the border, conduct investigations, and secure our ports, but they will not be paid. Now, it is fairly well known that the department of Homeland Security has notoriously low morale. That has been a problem since the departments creation a decade ago. This wont help. But i am sure those workers will do their jobs, which is more than i can say for the legislative branch of our federal government. Why do i say that . Because congress has certain responsibilities, some are complicated, and some are less complicated, and we failed to live up our responsibilities for years. First, consider the most basic obligation we have. It is our responsibility to pass bills to fund the government. If we dont do our job, the government shuts down. Congressional republicans got their wish in october 2013, and shut the government down for more than two weeks. Now the majority here has again set on a collision course. This time they will shut down the department of Homeland Security because they refuse to pass a clean spending bill because they want to block the administrations executive actions on immigration. Now, keep in mind that the spending bill were talking about was negotiated between republicans and democrats in the house and the senate. Truth be told, there are aspects of that bill that i disagree with. I strongly oppose the detention be mandated and believe that it is wasteful and unjust to include that language in the appropriations bill. But i also understand the importance of funding the department of Homeland Security and the need to keep our nation safe. Second, congress is also failing to do its job because it is ultimately our responsibility to fix our broken immigration system. Instead of doing that work, were Holding Hearing after hearing to vilify the president for taking important and common sense steps to prioritize the deportation of felons before families. The limited legislation that pg this committee has considered would make our immigration system even less efficient, less humane and less able to meet the needs of American Families and businesses. Earlier this month, we held two immigration subcommittee hearings on draft language of four deportation only bills that would separate families, strip protection from dreamers, destroy the Agricultural Industry into millions of jobs that depend on it. And return Vulnerable Children to face persecution and violence with no meaningful due process. Finally, i want to note that then familiar terms with our commander in chief. I cannot recall a Previous Administration during which members of congress, from either side of the aisle, showed such a persistent disrespect for the office of the presidency. The title of this hearing is also interesting because it is a statement, not a question, it just presumes that the administrations actions are unconstitutional. Even though no court has found the actions unconstitutional, and there is no there is strong Legal Authority and historical precedent supporting these policy decisions. And so in closing, our current immigration system is not working for American Families, businesses, or the economy. These problems require real legislative solutions. And so i urge our colleagues, my colleagues on this committee to start doing the job that we were sent here to do. Mr. Chairman, i yield back the balance of my time and thank you. The chair thanks the gentleman. Now my pleasure to recognize the chairman of the judiciary subcommittee on immigration and Border Security, the gentleman from South Carolina, mr. Gowdy, for his opening statement. Thank you, mr. Chairman. Mr. Chairman, the thread that holds the tapestry of our country together is respect for and adherence to the rule of law. The law is the greatest unifying and the greatest equalizing force that we have in our culture. The law is what makes the richest person drive the precise same speed limit as the poorest person. The law is what makes the richest person in this country pay his or her taxes on precisely the same day as the poorest person in this country. The law, mr. Chairman, is symbolize bade blindfolded Woman Holding a set of scales and a sword. The law is both a shield and a sword and it is the Foundation Upon which this republic stands. We think so highly of the law, mr. Chairman, that in the oath of citizenship administered to those who pledge allegiance to this country, to their new country, it makes six different references to the law. So attempts to undermine the law Via Executive pheaa regardless of motivation are detrimental to the foundation of a democracy. President obama, after the november midterm elections, i hasten to add, announced one of the largest extra constitutional acts ever by a chief executive. He declared unilaterally almost 5 million undocumented aliens would receive deferred action under some new fangled definition of prosecutorial discretion. Moreover, in addition to using prosecutorial discretion as a license to rewrite the law, he also conferred benefits on those same people. You may like the policy, you may wish the policy were the law, but one person does not make law in a republic. If you enjoy a Single Person making law, you should investigate living in another country. Because our framers did not give us, nor have generations of our fellow citizens fought and serve and sacrificed for a Single Person to make law in a unilateral way. So removing consequences for breaking the law is one thing, but bestowing benefits like Work Authorization and immigration benefits is another. The president himself recognized his own inability to do this, mr. Chairman, more than 20 separate times, he said he lacked the power what he ultimately did. In 2011, he said this, and i quote, the notion that i could just suspend deportations through executive order, thats just not the case. He told us time and time again, mr. Chairman, that he was not a king. His position may have changed. But the constitution has not and that document is clear and it is time tested and it is true and it says that Congress Passes laws and it is the responsibility of the chief executive to take care that those laws are faithfully enforce. The prosecutorial discretion [ inaudible ] a lot of conspiracies. Hows that . Is that better, mr. Court reporter . Let me see where i was. Oh, his position may have changed, but the constitution has not. Prosecutorial discretion is real, and constitutionally valid, mr. Chairman, but it is not a synonym for anarchy. Can not enact a program where by it not only ignores the dictates of congress, but actively moves to thwart them. The constitution gives the president a lot of power, mr. Chairman. Hes the commander in chief, he nominates Supreme Court justices, he can veto legislation for any reason or no reason, he can fail to defend the constitutionality of the law, he has the power of pardon, he has a lot of power, mr. Chairman. But what he cannot do is make law by himself. That is the responsibility of the congress. And if this president s unilateral extra constitutional acts are not stopped, future president s, you may rest assured, will expand that power of the executive branch, thereby threatening the constitutional equilibrium. The argument the Previous Administrations acted outside constitutional boundaries holds no merit with me, the fact that other people made mistakes is not a license for this executive to do the same thing. Mr. President , in conclusion, we live in a country where process matters. The end does not justify the means, no matter how good the intentions, when a Police Officer fails to check the right box on an application for a search warrant, the fruits of that search warrant are suppressed. When a Police Officer, even though he has the right suspect, for the right crime, but he just fails to include one small part of those prophylactic miranda warnings, what happens, the statement is suppressed. Even though you have the right person, even though you have the right crime, because we view process over the end. I must say this, and ill finish, i want to say this to those who benefit from the president s policies. You may be willing to allow the end to justify the means in this case, you may well like the fact that the president has abused prosecutorial discretion, and conferred benefits in an unprecedented way, you may benefit from the president s failure to enforce the law today, but ill make you this promise. There will come a day where you will cry out for the enforcement of the law. There will come a day where you will long for the law to be the foundation of this republic. So you be careful what you do with the law today because if you weaken it today, you weaken it forever. With that, i would yield back. The chair thanks the gentleman for the very cogent remarks and it is now my pleasure to recognize the Ranking Member of the judiciary subcommittee on immigration and Border Security, the gentlewoman from california, miss lofgen, for her opening statement. Thank you, mr. Chairman. The 113th congress is considered to have been one of the most do nothing congresses in history. The biggest symbol of the republican failure to govern was the unnecessary and irresponsible shutdown that lasted from october 1st through october 16th. Federal employees were furloughed for combined total of 6. 6 million days, 2 billion was spent on payroll to these furloughed employees for work they were prevented from doing. The recovering economy took a hit, and millions of americans were denied access to programs and services that they rely on. Perhaps it is fitting then that the 113th congress ended with the socalled cromnibus, a spending bill that yet again put us on a path toward a government shutdown. Were only two months into the 14th congress, but it seems like the republican majority and the house and the senate is trying to outdo itself. For the past six weeks, rather than proceed with the dhs funding bill, the democrats and republicans and the house and senate agreed to last year, Republican Leaders and the house and the senate have insisted that funding be contingent on the series of poison pill immigration riders demanded by the most extreme members and supported by all but a few. Since it was first hatched, many republicans have argued that the president acted unconstitutionally on november 20th when he and the secretary of Homeland Security announced a series of measures designed to bring a measure of sense to our broken immigration system. We have been told these measures cannot be permitted to take effect. Last week, of course, a federal judge issued a preliminary injunction halting two of those measures, the deferred action for parental accountability and the expansion of the deferred action for childhood arrivals program. These efforts are designed to offer temporary protection from deportation to certain parents of u. S. Citizens and lawful permanent residents and to dreamers with long ties to our country. The department of justice this week requested a stay of the injunction and noticed an appeal. The matter is in the hands of the federal courts. The branch of the government that the constitution entrusts to settle disputes, arising under the constitution and the laws of the United States. Some people including some republicans in the house and the senate have speculated that a Court Injunction would convince Republican Leadership to stop holding the spending bill hostage. What we have seen over the past two weeks, however, is that many republicans are even more determined to take us over a cliff and once more shut down the government. Several points are worth noting. First, we continue to hear republicans minimize the impact of a shutdown on National Security, by arguing that 85 of dhs employees were deemed essential during the last government shutdown. I just cant understand how we in congress would take comfort at the idea of forcing Border Patrol agents to secure our borders. Coast guard personnel, to patrol the seas and officers and agents to conduct Law Enforcement investigations and secure detention facilities without receiving their paycheck. It is unconscionable really. Further, it is bizarre that we will defund the everify program, stop the Immigration Enforcement efforts, but at the same time because they are fee supported, the processing of immigration petitions will be unimpeded. So the effort stops Immigration Enforcement, but does nothing to actually stop the processing of immigration petitions. Second, since we know the court has already temporarily halted implementation of dop and daka, expanded daka, it is important to remember what other initiatives Congressional Republicans are trying to block as part of dhs funding. They voted overwhelmingly to eliminate the daka program itself, stripping protection from more than 600,000 dream act kids and subjecting them once more to deportation. They voted to prevent dhs from implementing a new enforcement strategy along our southern border and creating three new Law Enforcement task forces. They voted to block dhs and dod from working together to ensure that u. S. Citizens who wish to enlist in the military would be able to do so notwithstanding immigration status of close relatives. It fails to acknowledge that the Legal Authority for granting Work Authorization and Social Security is entirely distingts from the authority to grant deferred action. And, in fact, is statutory yal. All of those authorities long predated dakka and congress has never taken action to limit that diskrex. The courts will ultimately decide whether it can take effect. It is our responsibility to reform the law and it would be irresponsible of us to shut the government down. We should allow the courts to do their job and we should do our own. And i would yield back. The chair thanks the jentle woman. We welcome our distinguished panel today. And if you would all rise, ill begin by swearing in the witnesses. And is a special advisor to the undersecretary of state for arms control and the interNational Security. The attorney general graduated magna cum laude and also graduated from georgetown yumpbt law center. Professor Josh Blackman is an assistant professor at the south txz college of law, specializing in constitutional law and the United States Supreme Court and is the author of unprecedented, the constitutional challenge to obamacare and over a dozen other articles about constitutional law. Professor blackman, clerk for the honorable danny jchlt bogs of the u. S. Court of appeal for the sixth sir cult and for kim r. Gibson. Magnum cum laude from George Mason University and magnum cum laude from penn state with a b. S. In Information Sciences and technology. Professor Elizabeth Price foley is a professor at Florida International University College of law where she teaches constitutional law. Prior to joining fiu, professor foley was a professor of law at Michigan State University College of law and served as a law clerk to the honorable carolyn king of the United States court of appeals for the fifth circuit. Professor foley is the author of multiple books on constitutional issues, including liberty for all, reclaiming individual privacy in a new era of public morality. And presently serves on the Editorial Board of the cato Supreme Court review. Professor foley graduated from the university of tennessee, and holds a b. A. Of history from ak emory university. Professor steven h. Lagamski is the john s. Leeman professor at Washington University school of law. Focusing on u. S. Comparative and international immigration. The founding director a center for instruction and research in international and comparative law. He recently returned from a twoyear leave of absence serving as chief counsel of u. S. Citizenship and immigration services. He is the coauthor of immigration and refugee law and policy which has been a required text at 176 law schools since its inception. The professor graduated first in his class at the university of San Diego School of law and clerked for the u. S. Court of appeals for the ninth circuit. I ask you each summarize your testimony in five minutes or less to help you stay within that time limit. When the light switches from green to yellow, you have one minute to conclude your testimony, and when the light turns red, thats it, your time is up. Please stop. Welcome, you may begin. Mr. Chairman, Ranking Member, and members of the committee. My name is Adam Paul Laxalt and im the attorney general of nevada. On behalf of nevada, i thank you for the opportunity to testify today about the states lawsuit, challenging president obamas unilateral executive action granting deferred action over 4 Million People. I represent 26 states that have sued the federal government. Its about the president s attempt to change the law through unconstitutional executive action. Like most of us im the descendent of immigrants. My ancestors came in search of a better life. In our nations history, similar stories have been repeated over and over they are what we have come to know as the American Dream. However, its never been true that in order to sympathize with the plight of immigrants or to believe in the American Dream one must reject our constitutional system. Fond of using that is a false choice. It is our commitment to the rule of law and the constitution that has drawn people to our shores across generations. The president said the following, i am the president , i am not the king. I cannot do these things by myself. Theres a limit to the discretion. I cant just make the laws up myself. We cant ignore the law. These are series of comments the president made before this action. After repeatedly acknowledging his duty to faithfully enforce the Immigration Laws passed direct d his Homeland Security to do just that and change tlau. To quote the president himself, he said, i just took an action to change the law. A coalition of states brought suit in federal court to join the president s unilateral action. Requires the president take care that the laws be faithfully executed. During the korean war, president truman relying on the war unilaterally seized the steel mills. President truman justified unilateral action because congress refused to pass a statute authorizing his action. They were ruled unconstitutional. Here the federal judge presiding over this case has observed. Not only ignores the dictates of congress, but thwarts them. The case was held unconstitutional by the Supreme Court. We think president obamas unilateral action here is unconstitutional. Second, federal statutory law, namely the administration procedural acts similarly requires when an Agency Issues a substantive rule. Under unambiguous statutory law, the department of Homeland Security here, i quote judge hanan again is tasked with the duty of removing illegal aliens. Congress has provided it shall do this. The word shall certainly deprives the dhs of the right to do something that is clearly contrary to congress intent. The president s plan that millions of illegally present individuals be granted legal present Work Authorization, eligibility for state and federal benefits cannot be squared with federal law. And therefore we believe violates the procedures act. Third, when a federal agency changes the rules like the president has ordered here the administrative procedure act also requires that due process is followed. That is, the agency must give fair notice of the rule change and allow Public Comment before implementing the change. Everyone agrees that was not done here. So this is the third reason the states are arguing the president s action violates the law. As you all know on february 16th, judge hanan found the states had standing and issued a preliminary injunction in joining the implementation of the program. Now, why nevada joined as nevadas chief enforcement officer, nevada law requires i initiate or join litigation wherever necessary to protect and secure the interest of the state. This suit is not about immigration. It is not about politics, it is about the rule of law and our constitutional system. This lawsuit transcends policy differences and seeks to prevent legislation from being usurped by executive fiat. Upholding our constitutional process is more significant than any policy directive. That any Political Party may be pushing at any time. Thank you for allowing me to testify about this important issue. Thank you, general. Professor blackman, welcome, i understand your parents are with us today. Theyre my dad is wearing the same color tie. Youll know who he is. Excellent. Chairman, Ranking Members and members of the Judiciary Committee. Im a constitutional law professor at the south Texas College of law in south texas. Im honored to have an opportunity to testify about why it violates the constitution and poses Severe Threat to the separation of powers. My brief time, i have three points. First, doppas unprecedented exercise and not constant with previous exercises preferred action. It violates the presence of duty to take care of the laws faithly executed. An encroaching threat to the separation of powers and the rule of law that congress not just the courts must take steps to court. The office of Legal Counsel declared that justify dopa through congressional approval. These claims are false. So first, in 1997, deferred action was granted for battered aliens under the violence against women act, vowa. Where petition had already been approved but a visa was not immediately available. Here the deferred action served as a temporary bridge for those who would soon receive permanent status according to the laws of congress. In 2001, deferred action was granted for aliens under the victims of trafficking and violence protection act. Lawful status was immediately available on the other side of the deferral. Third, in 2005, deferred action was granted for foreign students who, unfortunately, lost their visas when gulf coast schools were closed following hurricane katrina. The deferred action bridged the gap and gave the students four months to enroll at another college or university in order to regain the status previously held. Fourth, in 2009, deferred action was granted for aliens that were widowed by the untimely death of their spouse before the minimum twoyear period. Visa petitions have been filed but not completely adjudicated by the government because of administrative delays. Again, a way to deferral. It acted as a temporary bridge from one status to another where benefits were construed as immediately arising post deferred action. In contrast with dopa, deferred action served not as a bridge, but as a tunnel to dig under and through the ina. Theres no visa, the proverbial pot of gold awaiting other side of this deferred action rainbow. My second point is that dopa violates the presence duty to second point is that dapa violates to take care of the laws we executed. Article ii imposes a duty on the president unlike any other in the constitution. He shall and must take care of the laws to be faithfully executed. With daca, the blueprint for dapa, the Administration Limited offices to turn disdroegs a rub er stamp. This did not reallocate resources but was an effort to bypass and a transparent one at that. Second, because dapa is not consistent congressional policy according to Justice Jacksons decision president ial power is at its lowest ebb. Third, like that mythical phoenix, dapa and daca rose in the ashes of congressional defeat. The president instituted the policies after congress voted down the legislation he wanted. Further, the president repeated over and over and over again that he could not act unilaterally in the precise manner he did. His Actions Create a prima fascia case of bad faith. Third and finally. While i support comprehensive Immigration Reform, the president s unconstitutional actions can not be sanctioned. I hasten to add if upheld democrats have a much, much more to fear from this precedent. Generally, democrats like when the government takes more action and republicans like when the government takes less action. Today democrats may approve the president s deportation halt, delay unpopular provisions of obamacare or not prosecute marijuana crimes. However, the situation would be very, very different if republican president declined to enforce provisions of the tax code, waive mandates under environmental laws or decline to put obamacare together. In the words of james madison, the only way to keep the separation of powers in place is for ambition to counteract ambition. Although the courts play a role to serve as the bulwarks of the limited constitution, our republic cannot leave the task of safeguarding freedom the judiciary. The Congress Must counteract the president s ambition. The failure to do so will continue the one way ratchet for executive supremacy and delusion of nowers of the congress and the sovereignty of the people. The rule of law and the constitution itself are destined to fail if the separation of powers turn to parchment barriers that can be disregarded when the president deems a law broken. Thank you very much and i welcome your questions. Thank you, professor blackman. Professor foley welcome. Chairman goodlatte Ranking Members connier members of the committee, thank you for the opportunity to testify again today. My criticisms with the president S Immigration actions are based on Legal Process and not any particular policy or political results. What shape Immigration Reform may ultimately take is not my concern as a constitutional scholar. My sole concern is with preserving the constitution and its separation of powers architecture. President obama has repeatedly said that his motivation for taking executive action on immigration is because he wants to fix our broken immigration system. And what this means is that hes trying to fix our Immigration Law because of course, Immigration Law is the only immigration system that we have. So he thinks our Immigration Law is broken and he believes that its broken because it fails to exempt certain categories that he thinks deserve exemption from deportation and to whom he believes the law should grant benefits such as work permits. But fixing a law by unilaterally changing it by granting exemptions, recommend dis and benefits that the law doesnt provide is legislating. Or to be more precise, its amending. And thats a power that is given exclusively to congress by the constitution. The president s duty under the constitution is not to fix a law that he thinks is broken but to faithfully execute that law. When a president takes upon himself the power to change a law he doesnt like, we have no democracy anymore, we have instead, a legislature of one. If congress doesnt oppose president obamas executive orders on immigration, it will be writing its own institutional obituary. When Congress Fails to express disagreement with executive action, the courts tend to construe that as acquiescence or implied authorization by congress. This is socalled category one from Justice Jacksons concurrence in the youngstown steel seizure case. So Congress Needs to be very careful here. It has a constitutional responsibility to vigorously protect its turf. President obamaS Immigration actions are unconstitutional for three separate and distinct reasons that i elaborate in the written statement. First, they alter status of certain Illegal Immigrants, magically transforming them from deportable to not deportable. Second, they provide a remedy called deferred action that congress has not explicitly or implicitly authorized for this category of people. Third, they confer benefits upon certain Illegal Immigrants that that again congress has not expolice siltly or implicitly approved for this population. Any one of those particular reasons will render executive action on constitutional. When you have all three of them existing as you do hear with president obamas executive actions on immigration it creates sort of a Bermuda Triangle of unconstitutionality. It has a uniquely powerful gravitational pull capable of eviscerating article is legislative powers. Its the combination of all three of these aspects of president obamas executive orders on immigration that make it uniquely dangerous to this institution. Id like to highlight two points that i elaborate on in the written statement that i think bear a little special mention first, by granting work permits to dhaka and dan a recipients president obama immigration orders encourage employers to hire Illegal Immigrants over lawful residents. Thats because the accordffordable care act does not allow Illegal Immigrants to buy insurance. So if you hire more dak a and dapa p. A. Recipients, this lessens the employers exposure. So the more illegal i want grants you hire who are eligible then fewer eligible to buy Health Insurance and the fewer employers you have capable of triggering that employer responsibility tax. Why do i go into that detail . It means one important thing. President obamaS Immigration actions undermine the aca itself by undermining its goal of providing insurance via the workplace. So its no small irony here that by granting work permits to daca and dan pa recipients, president obama is undermining his own signature legislative achievement. Second dapa and daca recipient cans leave the country and come back relatively quickly. Without that if you enter this country and leave you have to stay out for a long period of time, usually about three to ten years before youre allowed to reenter. So once a daca or dapa recipient reenters this country theyre considered to be paroled into the country and controlled individuals under the statute are eligible to adjust their legal status and they can do this as long as they qualify for a visa such as, lets say, an employersponsored visa. So what does this mean . It means that at least for some dapa and th recipients attaining advanced parole will provide professor foley, youve exceeded your time limit considerably as well. Could you please summarize . Absolutely. It means they will be able to have a pathway to u. S. Citizenship. This is problematic because congress has the sole power to decide whos granted citizenship under the constitution and even if just one person under daca and dapa is granted advanced patrol and applying for adjustment of status we have a fundamental sur patient of congresss power over naturalization. Thank you and i look forward to your questions. Thank you professor. Professor legamski welcome. Thank you very much mr. Chairman Ranking Member conyers and honorable members of this committee. I appreciate the that reasonable minds can and do differ about the policy decisions but i want to respectfully share my opinion that the president s actions are clearly within his Legal Authority. Thats not just my opinion, by the way. This past november 135 Immigration Law professors and scholars joined in a letter expressing their views that these actions are well within the Legal Authority of the executive branch. We are people who have spent years and in some cases including mine, decades studying, teaching researching and writing Immigration Law and we are very familiar with what the statute allows and what it forbids. The president has not just one but multiple sources of Legal Authority for these actions, and ive submitted a detailed written statement that documents each of them. I also identify there every legal objection i can think of that the president s critics have offered and ive explained why, in my view, none of them ultimately withstand scrutiny. So with limited time ill hit just a few key points and refer you, please, to the written statement. Deferred action has been Standard Agency practice for many decades and its been expressly recognized by congress in several provisions and in many Court Decisions. Further more, every lawyer knows that statutes are not the only source of law. The most explicit Legal Authority for deferred action but not the only authority is in the formal Agency Regulations which have authorized it since the earliest days of the reagan administration. These regulations, by the way were adopted through notice and comment procedures and they do have the force of law. None of these laws not one of them, says or even remotely implies that deferred action is per se illegal. The most vocal critics have misunderstood what deferred action is. Theyve confused deferred action itself with certain things that you can apply for if you get deferred action. But deferred action itself is just one form of prosecutorial discretion. Its a decision not to prioritize a persons removal, at least for the moment and the only thing affirmative about it is that the agency is giving the person a piece of paper letting them know that that is the case. Every immigration scholar and practitioner knows that deferred action can be revoked at any time for any reason and the government can bring removal proceedings at any time contrary to what my new friend professor foley has said. Theres nothing in any law that says this makes a person who is deportable not deportable or that it gives them some kind of status. Thats simply not true. Its also true that existing laws allow deferred action recipients to apply for certain other thing including work permits and, if theyre granted, Social Security cards. But the executive actions dont touch any of those laws. So my feeling is if you object to them then by all means argue for challenging them. But theres nothing wrong with deferred action itself or this particular use of them. Importantly also, daca and dap pa applications do not create can we a ask the witness to speak into the microphone, please. Applications do not create can we a ask the witness to speak into the microphone, please. These applications do not create substantive rights and statuses. The secretarys memo says this explicitly. They are discretionary on paper and in actual practice. As to the latter, i hope theres a chance to expand on this that subject during the question period. Finally, there have been some melodramatic claim that if these executive actions are legal then there must not bely nimts at all to what future president s can do. My statements identify at least four significant concrete realistic limits. I have time to wiz through them. In a nut schell, one, the president cannot simply refuse to spend the resources congress has appropriated for enforcement as president nixon famously discovered. But thats not a problem here because president obama has spent every penny congress has given him for Immigration Enforcement and hes used it to remove two million. Nothing in these executive actions will prevent him from continuing to do the same. Two, the governing statutes impose limits. They will generally indicate how broad the executive discretion is in a particular area. In this Case Congress has given the secretary of Homeland Security especially broad responsibility for establishing national Immigration Enforcement policies and priorities. Now, nobody claims that power is limitless. It is, of course, subject to any specific statutory constraints, but to date, none of the critics that identified any specific statutory provisions that they can credibly say daca or dapa violate. Three, the particular priorities cant be arbitrary or capricious. These particular executive actions set three priorities National Security, public safety, and Border Security. I doubt many would say those are irrational. And fourth and finally, even if the priorities are rational, they cant conflict with any enforcement priorities that congress has specifically mandated. But here its just the opposite. Congress has expressly mandated exactly these very same three priorities. So there are serious limits and these actions fully respect them. Thank you very much, again, for the opportunity to testify. Thank you, professor. Well start the round of questioning and ill recognize myself and ill start with a question for you professor legams skrks legamski. You state in your testimony that the administrations recent executive actions do not even approach an abdication of its statutory responsibilities. What, in your view would the administration have to do to abdicate its statutory responsibilities . Would granting deferred action to all 11 million unlawful aliens be enough . My answer to that is yes. That would be enough and i did so would say, nine million would that exceed it . The answer to that would depend on an empirical question. The question is would the president still be spending substantially the resources congress has provided by . Well, lets remember that the president when you talk about deportations, the president counts people for deportation that Previous Administrations did not count because they simply turned them back at the border rather than taking them through a process and deporting them. So about twothirds of the people who are deported under the president s the two million figure you cited are were not counted in Previous Administrations because they werent put through that process. But be that as it may, youre say nag if the president blows through all the money in a way that uses it all up whatever that number is thats the number of people he can give not only deferred action to but also employment authorization and Social Security benefits and earned income tax credit and legal presence in the United States . Well, as i just said a moment ago, thats only one of what i see as four different limits. But the answer is yes. The president must spend the resources congress has provided by. And as long as he does that, if that meets the number, if he spends it all on 100,000 people, which is the number of actual deportations that occurred last year, 102,000 then he can give deferred action to the other 10. 9 Million People who are unlawfully president of the United States . Thats your answer . No it is not. For i think the third time, i think there were other limits as well and they include not only spending the money but making sure its within the terms of the statute, making sure prior trees rational making sure priorities are compatible so it would depend on all of those things. Well let me just ask our other panelists. Attorney general, would you like to respond to that assertion that the president has this massive discretion . You know, i think zooming out, congress has been debating this for many, many years and in this particular case this path was not specifically not voted on by congress. So by president obamas own words many times over again before he did this this is just not a power that our constitutional system contemplated him having. If he does, as mr. Chairman, i believe, was heading this direction, if five million is okay then why isnt six and why isnt seven and then, you know, the f two years is okay why isnt three . So, you know, it seems pretty clear that this by his own words this has stepped over and once you add the benefits that are included theres just no justification this fits under prosecutorial discretion. Let me follow up on that. You and 25 other states attorneys general including some governors, i think, in some states have brought an action in the District Court in texas and do you agree with what judge hannan said in his opinion in that case, the department of Homeland Security cannot enact a program whereby it not only ignores the dictates of congress but actively acts to thwart them . The department of Homeland Security secretary is not just rewriting the laws, he is creating them from scratch . We believe, as the three claims that have been made, that the constitution has been violated under the take care clause. The administrative procedures act has been, as judge hannan thwarted, he didnt ultimately decide that for the sake of this preliminary injunction he reserved that as well as the constitutional issues for the future but the states certainly believe that in all three cases the president has failed. Let me afford that opportunity for professor blackman and professor foley to respond to that as well. So i think that professor legamski opined dapa didnt do far enough. A november 25th blog post, the professor wrote how come dapa didnt apply to the parents of the dreamers . The parents of the daca beneficiaries. This raises an very important point. Many professors signed that letter and think the president didnt go far enough. So the dojs perceptions but was more important than that. But i will stress for the reason why they didnt go far enough because there has to be a relationship to a group that congress has preferred. Daca was people without any legal status. Dapa is the parents of u. S. Citizens. One important point is parents of u. S. Citizens wait 21 years for a petition for a visa followed by a tenyear bar. More important, parents of lawfully born residents can never get a visa through their children so this is a case where the policies favoring people who have not been classed as congress as preferred. Professor foley . I would just say, i mean it seems patent to me that both daca and dapa p. A. Are categorical exceptions from law. And with respect to professor legamski, look to president obamas own words when he announced in the november of 2014. He said in a televised speech before the nation all im saying is we are not going to deport you. I think that speaks volumes. The other thing i would say with regard to dadaca, look at the numbers, we have two years of experience and the latest numbers as the end of 2014 show 97 of daca applications have been approved by the administration and in a letter from director leon rodriguez to senator grassley not too long ago he admitted that the reasons why the 3 have been rejected is because theyre not filling out the paperwork properly or attaching the right check for the processing fee. That to me sounds like if you meet the criteria thats been a unilaterally established by this president , you will get an exemption from deportation and thats not what the ina declares. Thank you, chair recognizes the gentleman from michigan mr. Conyers. Thank you mr. Chairman, professor legamski could you respond to the question that has been posed by the chairman . Ill get it right this time. First of all, the figure is 95 not 97 . Professor foleys numbers are quite old and the current u. S. C. I. S. Web site has laid this out in detail for several months now. We can speak later if you wish about whether 95 is too high but its 95 . Second, i think with respect youve confuse dead niles with rejections. When you were speaking about people losing because they hadnt signed the form or submitted the fee. Those are the rejections. There are more than 40,000 of those. But in addition, there are more than 38000 denials on the merits and i think it would come as quite a surprise to those folks to learn that decisions are being rubber stamped. Thank you very much. Let me ask you this. In your opinion dorr the executive actions taken by the administration both daca and dapa alleviate the need for congress to pass broad Immigration Reform measures . Thank you congressman. I would say the answer is no. As the president himself has made clear on many occasions, he cant do what congress can do. Only congress can create an immigration status and a path to a green card and to eventually citizenship. All hes done with deferred action is to say well give you a temporary reprieve from removal. We will make you eligible to apply for a work permit and if its granted you can apply for a Social Security card but that doesnt approach a green card which would give you the right to remain permanently the right to naturalize, the right to bring many many family members and so on. Deferred action doesnt do any of those things. Thank you. Now let me ask you about the texas litigation. Judge hannon enjoined a Deferred Action Program because he believed the applications were not being adjudicated on a casebycase basis he concluded this was not happening in the daca context. Do you they is a reasonable way to approach the decision in that case. Thank you. Im glad to have a chance to answer that question because it really lies at the basis o the apa denial. Judge hannon had no support in terms of evidence in the record that that was true. The starting point is the secretarys memo. It sex police it isly says repeatedly you must engage in individualized case by case determine nation and it also specifically said if the threshold criteria are metz use still need to exercise discretion. Further more theres a lot of more discretion being exercised in determining whether threshold criteria have been met. To figure out whether somebody is a threat to public safety, its not just a question of fact, its an opinion as to how much of a threat a person has to be before we deny it and so forth. So what the critics are reduced to having to argue in effect is that this uscis work force is somehow going to systematically disobey the secretarys clear, explicit instructions to exercise discretion. There is no one shred of evidence in the record to support such an accusation. Now are the president s critics correct when they argue that the president himself doesnt believe daca and dapa are legal . Has he contradicted himself somewhere along the line . I dont want my answer to sound disrespectful, but that has been one of the most irritating objections ive been hearing along the way. I know it makes for good political theater to keep saying the president has contradicted himself but when you look at the statements the president has made, which just one exception, almost all have been grand general statements about how i have to obey the law, i cant suspend all deportations which, of course, he has not done. And so forth. He recognizes there are limits on his discretion and obviously he believes daca and dapa do not exceed those limits. As do the vast majority of experts in the field. The one exception i have to acknowledge is the unfortunate statement made in a spontaneous reaction to a heckler at one gathering when he said i took an action to change the law. Im sure if the president could go back and edit his comments as so many of us would love to do when we speak orally he would realize he should have said i took an action to change the policy because thats a more accurate description. But to read global legal significance into that one offhand comment does seem highly misleading. Thank you for the balance that you brought to this discussion and i yield back my time. I thank the gentleman from michigan. The chair will recognize the gentleman from virginia mr. Forbes. Mr. Chairman, thank you. And mr. Legamski lets go back to your political theater remark because there have been two lines on that theater that our friends on the other side of the aisle have played for audiences. One of them was found in your testimony, your written testimony. You state in here theyve removed two million aliens. But isnt it really a little deceptive because arent about half of those removals claimed by ice actually originate because theyre caught along the border . In fact, one of the articles pointed out said this the statistics arezpu deceptive because obama explained enhanced Border Security has led to Border Patrol agents arresting more people as they cross into the country illegally. Those people are quickly sent back to their countries but are counted as deported Illegal Immigrants. Is that a fair statement . Its factually correct. Then let me follow up because i only have five minutes. We had sitting right where youre sitting now the president of both the ice agents and of the Border Agents who testified unequivocally that theyre the ones interviewing these people and thats it the president s policies that were causing more and more of these people coming across the border. Isnt it really true if youre talking about political theater for the president to say hes sending more people back, kind of like a fire chief justifying his right to commit arson because it helped him put out more fires . It doesnt make sense to me. And when you look at the other line theyve been using on their political theater, its this one. Well somehow or the other if congress doesnt act and i determine as president of the United States that the law is broke and it just doesnt work, then all of a sudden it shifts the constitutional power over to me. So attorney general, i would ask you, if you look and, you know, the president i Mean Congress as i understand it has the authority to establish a uniform rule of naturalization. Is there anything in the constitution that says if the congress doesnt want to act because they like where the policy is or because they cant act that somehow that shifts the constitutional right over to the president and he can take any other action he wouldnt otherwise have taken constitutionally . Thank you, mr. Congressman. You know, this is the crux of the argument and it of the lawsuit and its within of my biggest concerns that its been so for many years going back to probably when i was a law student at georgetown. Our constitution is eroding and the executive branch continues to take more and more power. I cant think of a more clear example of something that the constitution clearly says the congress is supposed to perform and as i said earlier, congress is debating this, the president did not get the policy he wanted and now hes decided to do it. Id like to read a quote in answering to professor legomski i dont mean to gang up on you here. As to your comment that the president lizhis multiple statements didnt say he couldnt do this a heckler told him you have the power to stop deportations. And obama replied actually i dont. Thats why were here. What you need to know when im speaking as president of the United States and i come to this community is that if in fact i could solve all these problems without passing laws in congress then i would do so. But were a nation of laws, thats part of our tradition. And so its easy way out to try to yell and pretend like i can do something by violating our laws. And what im proposing is a harder path, which is to use our democratic process to achieve the same goal that you want to achieve. This president knows that he cant do this. He knows that our system did not allow him to take these extra steps. There is no question as judge hannon said in his opinion. There is a wide berth for prosecutorial discretion. I dont think youre going to get a lot of argument about that. But this goes so much further than any prosecutorial discretion thats ever been exerted. If this was allowed then congresss role in this entire field is abdicated. Why would continue take year after year to debate these issues if a president is able to take a scope weve never seen before and, in addition, add benefit on top of simply deciding to not deport. We saw that kind of syntax change when we heard you can keep your insurance policy if you want to as well. But it makes no sense that we have these arguments. My time is out mr. Chairman i yield back. I thank the gentleman from virginia. The chair will recognize the gentleman from new york, mr. Nadler. Thank you, i must begin by saying im surprised to hear the attorney general of a great state confusing political statements with legal statements. All these quotes from the president are interesting in a political debate and a political discussion. Theyre not interesting in terms of what his powers actually are. His opinions frankly, in a political context at all. Whats interesting whats relevant as the attorney general should know, as everyone here should know, what are the laws are, the precedents are and Court Decisions are. Not the president or anybody elses political statement in any context. Let me say also that let me ask professor legomsky. Weve heard that the president s exercise of discretion since its categorical is somehow different and that hes establishing categories of people to whom hes giving rights that congress hasnt chosen to give. Essentially thats the gravity of what were being told i think. I think rather, and please comment on this, that thats untrue. Because the president is exercising degs discretion and granting deferred action to people. He can choose, the arizona case the Supreme Court has said it congress specifically has said it. We can choose to do that by group. By category. If the president came out with a list and said if following two Million People by name are granted deferred action we would think thats sort of ridiculous. Although i dont think anybody could do that. By category i dont think he changes that and, please comment on the fact that hes not invading congresss prerogative because hes this deferred action can be revoked at any time number one, and confers no permanent benefits, even though its been stated repeatedly that these people again benefits. They may get a Social Security card but my understanding is they dont get benefits. Can you comment on these two points. Sure i think everything you just said is absolutely correct. Two things on the discretion issue. First of all, i do agree that theres really no law out there that says the president couldnt grant deferred action on the basis of a classbased discretionary judgment if he wanted to do so. We dont have to reach that issue here, however because the president didnt even do that. He did provide specific the secretary did for individualized discretion. I want to add that this is the way agencies normally behave and its very sensible. You want the agency to provide some generalized guidance to its officers as to how theyre toexercise discretionary power because you want political accountability to rest with the leaders. Secondly because you want this information to be transparent because its important. And third, the officers on the ground need to know what to do and, fourth, we want some reasonable degree of consistency to the extend possible you dont want relief to depend on which officer you encounter or which prosecutors desk your file happens to land on. And in this particular case, the evidence on the record shows that, in fact, these casebycase evaluations are being made. Thank you very much. Before my next question i would like to simply comment on some of what has been said in the dialogue with mr. Forbes and some others. The decision to formally remove Border Crossers rather than to return them was a strategic choice first made by president bush in order to disincentivize future illegal entries. A formal removal creates future bars to admission. Would you comment on that . Sure, i think Border Apprehensions and priorities make sense both for the reason you just gave, congressman, and for a another practical reason, its smart strategy. Its smarter to stop a person at the border than to divert resources from the border, let people in and try to chase them down years later. Thank you. Many of the critics of the Deferred Action Programs complain they go beyond enforcement of Immigration Laws and instead provide a lawful status to people in an unlawful status. Is that correct . No, their status remains unlawful. They have something called unlawful presence which has a specific meaning for one particular provision but their status is unlawful. And finally, critics of the president s actions suggest that they are unprecedented and act as those these issues are entirely novel to the federal courts. Hasnt the Supreme Court, in fact, spoken about the extent to which the administration has authority to exercise prosecutorial discretion in the immigration area specifically and whether granting deferred action is an appropriate form of that discretion . Yes theyve done that in a couple cases, as have many of the lower courts. The Supreme Court decision one Supreme Court decision specifically recognized deferred action by name. The facts were different but the takeaway was the same. The president has this power. So finally what about what the president has done aside from the fact of his name, perhaps his party and the politics of immigration is different than what previous president s have done . I dont believe it is different. All fact situations are different in some sense but theyre not meaningfully different. Slightly different form was used in previous cases but the fraction of the undocumented population that the actions were predicted to affect is roughly the same and in all other respects the main id say the one common denominator, in all of these cases president s have used their powers to relieve noncitizens from to provide temporary reprieve from removal and temporary permission to work, both of them revokable to large specifically defined categories of undocumented immigrants. Thats not unprecedented at all. Thank you very much, my time is expired. I thank you the gentleman from new york. The chair would recognize the gentleman from arizona mr. Franks. Well, thank you, mr. Chairman. Mr. Chairman, its often said that when human rights and human laws are in human hands that men lose their freedom. And professor foley, i sometimes am entertained by reading from the federalist papers to law professors like yourself i am not an attorney so it gives me a little thrill you understand . But in madisons statement, federalist number 47 he stated that the accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, selfappointed or elected may justly be pronounced the very definition of tyranny. The framers of the constitution understood that the accumulation of powers and tyranny were inseparable. And they rejected giving the newly created chief executive the Legal Authority to suspend or dispense with the enforcement of the laws. And that of course, in their mind was the province of congress. So my question to you is do you believe that the president s recent actions comport with the framers conclusions and is president obama refusing to adhere to the take care clause in an attempt to evade the will of congress and was he acting constitutionally when he did that . Congressman franks, you ask a very salient question. Absolutely the president here is violating the take care clause because his duty under the constitution, again, is to see to it that the laws are faithfully executed. So even if the laws are completely broken and everybody on both sides of the aisle agree that the law is broken, the president does not have the constitutional power to fix it. If its going to be fixed, it has to be fixed by congress and congress alone. I think the framers would be rolling over in their graves if they knew what this president was doing. And let me just address prosecutorial discretion for a moment if i may. I mean one of the hypotheticals that gets bandied abowdut by those who support the president s actions say well, a sheriff can decide hes only going to pull over speeders who go five Miles Per Hour or more over the speed limit and let everybody else go and thats what this president is doing, theres no difference. Theres a world of difference between those two things. What that president is doing in that hypothetical is classic prosecutorial discretion. But thats not what president obama is doing by these actions. To be analogous to what president obama is doing here, that sheriff would have to first of all publicly pronounce to the world that hes not going to pull over the speeders, despite fact that the law says theyre speeders. He would have to say and if i do pull anybody over, im only going to give them a fine of a dollar even though the statute says its 100 or more fine. And then also when i decide to pull them over im going to give them a gift card from best buy, im going to confer benefits upon them. Ma thats what the president is doing and thats not prosecutorial discretion. Well, im not sure i should ask any more questions at that point but professor blackman do you agree with comments, basically . Oh absolutely. The president s Ambitious Congress is ambitious. The president wants something, Congress Wants something. The only way to prevent tyranny to prevent being infringed is both have butted their heads. All too you have been people say, washington is gridlocked. Now, this congress hasnt been able to reform, but thats not a license to expand your power as Justice Scalia pointed gridlock is a fee you are not above our constitutional order. Justice breyer said these are political problems not constitutional problems soty t point id like that stress the mere fact that washington is broken doesnt give the president power to ascend. It says the president has powers of discretion but it says the case my turn on the equities of an individual case. It says in the opinion, justice kennedy, the equities in the individual case. So when you read both paragraphs arngsd this is won on a case by case basis. Thank you. Professor, foley, let me expand on one other thing you mentioned. The Federal District court in texas made this distinction between the federal government not enforcing Immigration Laws on removal of an individual and taking the next step of actually providing lucrative benefits to unlawful aliens. That seems to be an incredibly stark precedent here. Could you expand on that a little bit . Absolutely. The conferral of benefits is the classic example of why you dont want to start going down this road constitutionally with the president. Because think about what hes doing. Hes first of all publicly announcing to everyone that even though the law says you shall be deportable, youre no longer deportable. Now im going to give you this remedy called deferred action that congress has blessed in certain other instances explicitly but not blessed for this particular population then once he makes those moves then he confers all these benefits upon this population. Thats classic bootstrapping. And if the president can make the first two moves, then why not just bootstrap and add the other move which is the conferral of benefits . Thats what makes this so dangerous because if congresss core constitutional powers include anything, its not just naturalization but the power of the purse and these benefits have financial consequences not only to the federal government but of course to the states which is why they have standing to sue him. Time of the gentleman has expired. The choir rises the gentleman woman from california ms. Lofgren. Thank you, mr. Chairman. Before asking any questions id ask unanimous consent to enter into the record five statements from the following organizations explaining the Legal Authority for the president s actions from the constitutional accountability center, the Asian American advancing justice, American Immigration council, National Council of la raza and the National Council of asianpacific americans. Without objection they will be made a part of the record. Thank you. Professor legomsky i want to say publicly that ive been in congress for 20 years, ive read a lot of testimony in many hearings over the years. Your testimony is the singular best most concise logical testimony i have ever read in my 20 years in congress and i thank you very much for your service in that way. I would like that ask you a few questions. Professor foley in her testimony indicates that the undocumented immigrants who are covered by daca and dapa are no longer deportable. And that according to that, Illegal Immigrants who fallout side these three priorities are not to be deported at all. Do you agree with that and if not why not . That statement is not true and im not sure where professor gets the authority not as cited. They are of course still deportable. The secretary has made clear that deferred action can be revoked at any time. Theres nothing to prevent the administration from initiating removal proceedings at any time. So im not sure what the basis would be for that assumption. Im also neglect informal saying thank you so much for those generous kwhords are really too joan rouse. In the reno case, Justice Scalia had a key holding, it was that congress had made immune from judicial review any action or decision to commence proceedings, adjudicate cases or execute removal orders. And went on to say that at each stage the executive has discretion to abandon the endeavor at the time the hour was enacted the i. N. S. Had been engaged in a regular practice which has become known as deferred action of exercising that discretion for humanitarian reasons or simply for its own convenience. Professor foley in her written testimony i think tries to diminish the significance of that case and to distinguish that says the court merely acknowledged the court did not want federal courts to get tide up in adjudicating discrimination lawsuits. Do you agree with that . And if not why not . I think professor foley makes a fair point in noting that that case did involve a denial of relief rather than a grant of relief. But the broad take away from the case is freft the nz courts language where it went out of its way to say this discretion extends to the decision whether to adjudicate cases how to adjudicate cases and also whether to execute removal orders. So the facts might be slightly different but i see no basis on the opinion for distinguishing it based solely on the facts. In theres been a lot of discussion about how dapa and daca grants additional benefits. But it is my understanding that it simply defers action and persuant to section 274 a, the immigration nationality act which provides that employment may be authorized either by the act or by the attorney general and 8 cfr 274 a. 12 provides an alien whos been granted deferred action an act of administrative convenience to the government may apply for authorization if theres an economic necessity which must be proven. Is it your position that its only the statutory basis thats been exercised following a grant of deferred action or does the executive action give some kind of benefit directly . Yes i think its a little bit of both. I would distinguish two kinds of socalled benefits. First of all, theres the benefit of simply receiving a piece of paper in which the government tells you we are deferring action in your case. People can disagree on the policy of that. There are pros and cons of telling the person. But ive never seen anyone cite a law that says its illegal to tell a person were not going to prix perot seed against you. The other benefits and the ones youve been describing just now are specifically authorized by statute and even more specifically authorizationed by the regulations. Theyve been enforced since the early 80s, they have the force of law and they specifically say if you receive deferred action you are eligible to apply for a work permit. Now, we appropriate money every year that allows for the removal of roughly 7 of those who are in the country in an undocumented status. It appears to me i mean, the affidavits submitted to the judge in texas by the head of ice and the head of the Border Patrol indicate that having a piece of paper would be to note the priority would be have been helpful to them because the cost for removal is not at the stop its the detention, theres a lot of cost that goes into that and knowing that this person was not the priority at the beginning would be help to feel the agency before costs are incurred. Do you think that without having these priorities were going to end up having to say that the nanny is who is caught on the street is as high a priority as a drug dealer or gang member . I think that would be the logical result. It would be up to each individual Police Officer to decide what do i think my agencys priorities ought to be . And may i just add in addition to the benefit youve just described, namely helping ice sift out the low priorities so that they can focus on the High Priorities in addition uscis is collecting a lot of useful data that can be shared with other enforcement agencies and all of that is being paid for by the requesters themselves, not by the taxpayer. My time has expired mr. Chairman, i yield back. I thank the gentlelady from california. The chair would recognize the gentleman from texas, judge gohmert. Thank you, mr. Chairman, and thank you to the witnesses that are here today. I want to direct first question to our two law professors. Did both of you read the 123page opinion by judge hannon . Yes. Yes. Okay ive got it hear myself. For full disclosure andy hannon was a classmate in law school, he was one of the best and brightest, thats why he went with one of the best firms in the country in houston and why president bush nominated him. Hes a brilliant guy. Have you also read the response that the that has been filed by doj, both of you . Yes. Okay. Well i was noticing in page 10 of the response where theyre saying the government will suffer irreparable harm absent a stay and in the very next sentence they say that the injunction, judge hannon granted, blocks dhs from exercising its authority conferred by congress and its congress thats trying to stop them from exercising the authority, not by a written executive order as judge hannon makes clear but as a good monarch would do the president spoke law into existence and then the secretary of Homeland Security ran and put it into a memo memo so im wondering if a law student in response given a question heres your exam, respond to the 123page opinion of judge hannon and they came back and said irreparable harm because the injunction will prevent us from doing the job that congress conferred on us what would be your response as law professors to the that answer . I guess my First Response would be again bootstrapping argument. F. Theyre saying theyre going to suffer irreparable harm because theyre prevented from thinking they dont have the authority to do what theyre trying to do. Its got to be no. The answer has to be know because despite professor legomskys attempt to identify four criteria that he think prose sides are a meaningful limiting principle, with respect, they dont. If this president can do this, future president s can unilaterally spend for entire categories of people whom they prefer for some political reason operation of various laws. Environmental laws labor laws the laws and on and on and on and that clearly upsets the constitutional balance. Thats not faithful execution of the law. And if i may add, the Ranking Member is correct, this was not a constitutional decision. The decision was on the administrative procedures act but i think judge hannen showed his hand a bit, maybe a texas bluff. The constitution says the president will take care of the laws he executed. This speaks of a complete abdication of the laws. Judge hanens opinion explains clearly why. One aspect of the opinion that hasnt been appreciated he says we need notice in common, we need rule making. Somehow this working . I think this hearing testifies why. We dont know how this policy works. In my research i find a checklist used by dhs which has no other box its the only way to grant dapa is by checking off a box. Professor legomsky found narrative form. He admitted theres different types of forms being used. Do we know which type . No. This would be a perfect opportunity to show the American People how this is working then we can go to court. So i think theres one saltory aspect of judge hanens opinion is we can learn what this is doing. Were learning this now after the memo has been released. Had texas not filed the lawsuit, this policy would be in effect and there would be no opportunity to challenge it. My time is about to expire but this is an incredible response in how poorly done it is in my mind. Bottom of page 10 it says for reasons long recognized as valid, the responsibility for regulating theeing the relationship between the United States and our alien visitors has been committed to the political branches of the federal government. As such, preliminary injunction necessarily causes irreparable harm. They site that this belongs to congress and then come back and says so if you leave to congress it causes the executive branch irreparable harm. These for heavens sake our Justice Department needs better attorneys and especially when you look at page 15 saying that youve got to throw out the injunction because it undermines the departments efforts to encourage illegal alien. Again, professor, it bootstraps. They were not give than responsibility, theys not their job. I see my time has expired . I think the gentleman from texas. The chair would recognize the gentlelady from texas miss jacksonlee. Let me thank you very much mr. Chairman, and i think its appropriate to acknowledge we have members here and witnesses here how much we appreciate you coming and offering your testimony. I also think it is important to acknowledge that there are many issues that this Judiciary Committee, my friends on the other side of the aisle republicans and democrats Work Together and collaborate on. And i think that should be a message preceding the very vigorous disagreement and unfortunate interpretation that is now given at this hearing. Let me associate myself with the words of my chairman. Id like to think that this is a hearing regarding president Barack Obamas executive actions and i would prefer him not to be called obama. And to honor the office in which he holds. I also want to acknowledge the constitution. We went through this argument to the various professors with respect to the powers of this president and we all can interpret the final words of the section, section ii that deals with shall take cares that the law be faithfully executed. And therefore we make the argument that the executive actions are in actuality a reflection of those laws being faithfully executed. So i just want to i dont really want you all to suggest that im trying to show my smiling face, but immediately when the order came out from texas, texans and families that would have been severely impacted came together and said they stand with the president for testimony humanitarian the relief, the authorized relief, the discretionary relief that allows him not to convey status but through his attorney general to be able to have prosecutorial discretion and to be able to discern the prioritization of crooks and criminal, felons versus families. These are the family members. This is an example of a parent that would be, if you will separated from their child. And i think i want to make sure i have that professor it is legomsky . Pretty close, yes. Legomsky. I want to make sure i pose questions to you in a short period of time because i think you elevated us to a level worthy of commentary. This is a hearing that contributes to Political Security and not National Security. In this hearing, the backdrop, we are not funding dhs. That is a horrific tragedy in the midst of the crisis of isil and were doing it on untoward and police directed arguments that really are not accurate and i think thats important. I would say to my good friend from nevada that we have documentation that nevada would be severely hampered by the presence of your lawsuit but more particularly not funding dhs. I may have the opportunity to present that into evidence sort of looking for my documents right now. But there are documentation that grants that you would warrant and need would not be generated and ski you to review the impact of not funding dhs that you would ask me well, im not at a dhs hearing i just came from one, thats why i stepped away, but you are engaging in a discussion that tracks why dhs is not being funded. Allegedly because these executive actions are unauthorized and its absolutely incorrect. Let me also show you, if i might, for the people who believe that this is a frivolous exercise professor lumbowsky, these are the procedures that the discretionary efforts have asked these individuals to go to. And i think i count up to 15. I would really like to know how many of us go to 15 eligibility requirements to do anything. Quickly my question to you is, to go back to this constitutional question of the executive action, and you premised it on the fact that the president president , the discretionary tort. But the arguments made by my good friends are incorrect. It is limited. It is not offering limited citizenship. It is not offering the Affordable Care act. Could you just tell us how we are in the context of not having a runaway executive laying the precedent for a runaway executive in the future. The gentle lady is out of time but you may answer the question. I thank the gentleman for his indulgence. As outlined earlier, i think there are several tangible limits. I know professor foley have said they dont really work but im not sure why. There are real limits on what a future president can do. I very much appreciate your having brought to life what these issues are about. This is not an academic game. Were talking about the lives and the hopes of millions of people. And im thankful to you for bringing that out. Chair thanks the gentle lady from texas. Will now recognize the gentleman from pennsylvania, the former United States attorney mr. Moreno. I have a request that since im running among three hearings today, would the chairman skip me for a moment . I would be thrilled to go to the gentleman from ohio, mr. Jordan. I thank the chairman. Professor foley, a number of my colleagues on the other side of the aisle have said republicans are holding the dhs funding bill hostage. Professor, we passed legislation last month that funds the department of Homeland Security at the levels they agreed to. Levels they wanted. So in your opinion as a legal scholar, do you think we have held anything hostage or have we just done what constitutionally were supposed to do . Congressman jordan i think youre doing exactly what the constitution con templates you should do, what the framers anticipated you would do. They anticipated that you would vigorously defend your constitutional prerogative. Right. But we passed a bill at the levels they want. We did include language in the legislation which said we think that what the president did last november was unconstitutional. We took an oath last month when we were sworn into this congress to uphold the constitution. So we put language in there that said we dont think you can use taxpayer money you shouldnt use were not going to allow you to use american taxpayer dollars to carry out an action we think is unconstitutional. Do you think the president s actions last november were unconstitutional professor foley . I i absolutely do. Its one thing to hold an appropriations measure hostage. Its another thing to hold the constitution hostage. You think it is, i do, the two gentlemen to your right and a whole bunch of other folks on the right and left of the political spectrum think what the president did was unconstitutional right . Thats correct. Last week we had a federal judge say what the president did was unlawful correct . Correct. So the fundamental question the fundamental question here is, how can democrats insist on making sure that they can hold the dhs bill hostage to maintain the ability to fund something so many people think is unconstitutional and a federal judge has said is unlawful . Dont you think professor foley thats the central question . How can democrats insist on we want a bill that allows us to fund something everybody not everybody but a lot of people think is unconstitutional and a federal judge has said is unlawful . How can they insist on that . You may want to ask your colleagues on the other side of the aisle that question. I would say again in my opinion it seems like it is in fact the other side of the political aisle that is holding the constitution hostage. But its even worse than that, pro first foalfessor foley. They not only want to insist they be able to fund something thats unconstitutional and the federal judge has said is unlawful, theyre not even willing to debate the issue on the floor of the United States senate. Its one thing to make this we think just bring it up for debate. Lets have the full debate like were supposed to. The committee next door we invited secretary johnson to testify and he refused to. He can go on every show over the weekend and talk about this but he cant testify and answer fundamental questions . If anyones holding it hostage, seems to me its the democrats of the United States senate. We have a bill over there. Funded the department of Homeland Security at the levels the democrats agreed to but has language which says you cant do something thats unconstitutional and a federal judge says is unlawful and they refuse to even debate it. Thats a shape. Thats not the way the constitution of the republic is supposed to work. Its the process of debate and deliberation that gives you your value to the American People. And this is a controversial issue. And it ought to be discussed and debated. Im glad were having the hearing today. But they shouldnt play politics with the constitution. And the final thing i would say, mr. Chairman, its been said many times, but 22 times the president said that he couldnt do what he did. Legal scholars on the left and right have said its[n unconstitutional. A federal judge has ruled its unlawful. We have a bill that funds dhs at the levels the democrats agreed to and puts language in there consistent with the president s statements 22 times consistent with what legal scholars across the political spectrum say and consistent with what the federal judge just ruled on last tuesday. Its unbelievable to me that we cannot just pass that legislation and do and do what the American People want us to do. With that, mr. Chairman, id yield back. I thank the gentleman from ohio. Chair would now recognize mr. Chairman, may i introduce two items into the record, please . Okay. Thank you, mr. Chairman. I offered an eligibility chart. Id like unanimous consent to place that into the record. Without objection. A chart dealing with the state of nevada Homeland Security profile summary of fema. I ask unanimous consent to place that into the record. Without objection. I yield back. Chair would recognize the gentleman from tennessee, mr. Cohen. Thank you, mr. Chair. Professor legomsky, you said that how many different professors or attorneys specializing in Immigration Law felt that this was appropriate and constitutional . 135 immigration scholars and professors, not even counting practice ers signed onto that letter. Do you know how many people in that similar class, although the class is hard to define, said it wasnt constitutional . Im aware of two and a third person whose views are somewhat ambiguous on it. But there are very very few in number. So 135 to 3. Thats even better than kentucky usually gets in basketball against bad opponents. I dont like to represent that every immigration professor has opined on the issue, but of those who have those would be roughly the numbers. Are. And you are a professor of Immigration Law, is that correct . For 30 years . Yes, sir. And have written a textbook that is in what, 183 law schools, is that correct . It has been. Im very fortunate, thanks. I want to you are indeed the most expert person we have. These other folks are fine people and theyve done a lot of good work trying to say that obama care is unconstitutional, a lot of work on Health Care Law and some work saying that colorado shouldnt be able to legalize even though Justice Brandeis talked about the laboratories of democracy they shouldnt be able to do that. But youre the expert. None of these other folks have written textbooks on Immigration Law. Their main work has been on property law constitutional law and health law. You believe this is 100 constitutional, do you not . I do. And can i just say i have a great deal of respect for both of my colleagues here. Theyve both done wonderful scholarship and both top people in their field. But ultimately whether the take care clause has been violated depends on the Immigration Laws. If youre going to say the president has not taken care to faithfully execute the laws youve got to specify what laws you think the president has violated. One of the things thats struck me about this discussion theres been almost no reference to any specific provisions of the law that they actually say have been violated. Youre familiar with u. S. 6205 . Theres a clause there that says the secretary shall acting through the undersecretary for border and transportation security shall be responsible for the following. And he gives eight items. Number five is establishing national Immigration Enforcement policies and priorities. Does that not clearly give the administration the authority to do what they did . I think it does with one qualification. I agree with professor foley that thats not limitless. The secretary must exercise that power consistently with any specific statutory constraints. But again no such constraints have been credibly identified. Do you have any you were an attorney also i think for immigration. Do you have any ballpark figure on how many followdollars it would cost the taxpayers to hire enough attorneys and to go through the proceedings to try to stop those people or send those people out of the country . Im sorry sir. I dont have a number on that. There have been studies, though. Theres no doubt the number was cost prohibitive. It would be impossible to do that. Millions of dollars. Many many millions. Im sorry. I want to take that back. I shouldnt say many millions because i dont know the number but its astronomical. Astronomical is close to many millions. In the same ballpark. President s reagan and bush the first did much similar to what president obama has done. And you commented that other than i think it was maybe miss lee and might have been representative nava other than the difference in parties, et cetera, how would you distinguish the reprisals this president has got snn why is this president different than all other president s . I think theyre very similar in that in each case the president was doing Something Congress sorry was acting in an area in which congress had specifically decided not to act. One of the differences that professor foley mentioned, and i have to say this is a fair argument though i disagree with it. The argument was well president bush was exercising a specific statutory power because there was something in the law that authorized voluntary departure. I dont know that congress intended a voluntary departure be exercised on a classwide basis but there is that. First deferred action itself is recognized in many places in the statute. It has been recognized by many courts. Secondly the most explicit Legal Authority which does have a force of law is the regulation thats been in force for more than 30 years. I just want to make clear that professor foley i wasnt meaning anything about the u. T. Kentucky game. They played a great first half and i was pulling for u. T. Also but kentucky was too much. The chair will now recognize the gentleman from texas judge poe. Im over here on the far right. Let me ask you some questions. Thank you all for being here. Professor blackman thank you also for being here. South texas, i couldnt get into south texas. But im glad youre here. You can visit my classroom anytime, sir. Tell professor trees hello. He and i are contemporaries. Quite a tribute to him the school has him. Lets assume these hypotheticals, being from law schools, law professors love hypotheticals. So lets talk hypotheticals. The next president whoever it is decides i am going to postpone the individual mandate in obamacare indefinitely. So be it. Issue memo out to the fruited plains. Next president decides, i am going to postpone the implementation of epa regulations indefinitely throughout the fruited plains. Sends out memo. Ive decided that in all fairness some people should not have to pay income tax. So i am going to tell the irs not to enforce the irs code to a certain specific group of people that i think just shouldnt have to pay income tax. Memo out to the fruited plains. And we could go on indefinitely indefinitely. If everything stands like it is with the courts, the president , the executive issues, orders is this a possibility that these types of executive memos from future executives may just happen . With respect living in that ear remarks president obama delayed the individual mandate once for an entire class of people based on the hardship. What was the hardship . Oklahoma care it was too expensive. President obama delayed the employer mandate twice what was the hardship . Obamacare it was too difficult. With respect were living in that era. I think its a very very scary time. Take your example and imagine a future president said we dont have enough agents to enforce the Internal Revenue code against the Capital Gains tax so we wont enforce it. We can tell people the Corporate Income tax is way too high. For any corporation that is has so many employees were not going to enforce it. Its just too much work. I think it sets a very dangerous precedent. One point ill add is faithfulness. The constitution says you shall faithfully execute the law. Im okay with the president making a good faith belief that his actions consistent with the statute gives discretion. Im okay with that. But what the facts demonstrate here is one of bad faith. The reason why the president s statement about lacking power relevant is not for political theater. Its to say he said that, he what asked can you defer the deportation of a mother of a u. S. Citizen . He said no. The Justice Department said no this cant happen. Suddenly in congress they find this authority. I think its a case for bad faith. We are in uncharted waters. If you open a constitutional law textbook where i do have expertise theres not much written on the take care claus. Thats why constitutional lawyers want to understand why the separation of powers trumpS Immigration law when it goes too far. These provisions no doubt grant discretion. But granted the amount of discretion that the Justice Department weighs now its unconstitutional to the nondelegation doctrine. The ols memo does not put this much weight but the doj did. Taf of after they lost they shifted to these two provisions and put more weight on t. There is discretion but its in the caveats of the take care clause. Which we now have to litigate. It will be at the fifth circuit any minute. I only asked you the time. I didnt ask you to tell me how to make a watch. I mean that kindly. Only because we have so little time understand. My question was those hypotheticals they gave you are those real possibilities if everything stands the way it is . If the next future executive in good faith faithfully executing the law of the irs code says its not fair that everybody has to pay the 39 or whatever. Or the epa, thats too big a burden out there on americans to have to comply with the epa regs. Well give them a pass. Its just not fair. That was my question. And the answer is, it is a possibility . No, the answer is yes. If this precedent stands, that president s can make these good faith arguments, then the games over. Then you as a body of congress have no power and all you have left is your power of the purse. One more question. If thats 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 that the constitution empowers him or her to waive federal law . Or federal regulations . That its his discretion or her discretion as the Governor Executive Order send out memo to the state of whatever i didnt say texas but it could be just ignore this federal rule by a Regulatory Agency under the idea that the executive whoever it is in the states has the same authority. Well that, would violate the supremacy clause in both cases. The constitution for the supreme law of the land the president is bound by it and states are bound by it. Neither can ignore it. Mr. Gentleman yield . Im out of time. I yield back to the chair. Thank you, judge poe. The chair would now recognize the gentlelady from california miss choou. Id like to enter into the record the center for American Progress report that says it would cost 50 billion to deport the estimated 5 Million People who would benefit under daca and dapa. Without objection. Professor legomsky critics argue that even though dapa and daca have individualized criteria that officers have to use on a casebycase basis that the high rate of reproofal shows theres blanket approval of these cases. You served as the chief counsel of the uscis in the department of hem Homeland Security for several years including in the time dac arca started. Im curious what you learned about these cases. A 95 approval for daca applications. Can you explain why there is this high approval rate and whether its appropriate or not appropriate to conclude that officers are not making individualized assessments . Thank you. At first blush i agree that 95 sounds high, but its not when you think about whos actually applying for daca and dapa. If youre an undocumented immigrant, and if in addition you have some other negative conduct in your background, there are at least two things youre very unlikely to do. First of all youre not going to Initiative Contact with the government and say this is my name. This is where i live. Im undocumented and i also have this other negative thing in my background. And here are my fingerprints so that the fbi can do a background check on me. Youre not likely to do that. Second unless youre independently wealthy and not many of these folks are, youre not going to send the government a check for 465 for something youre very unlikely to receive. So for both reasons, this tends to be a very selfselecting population overwhelmingly people with rock solid cases. Therefore the high approval rate is no way indicates theyre being rubberstamped. May i add quickly also the notion theyre being rubberstamped would come as quite a surprise to the 38,000 people who have received denial notices. Thank you for that. Professor, congressman dates through the secretary of Homeland Security the national Immigration Enforcement policies and priorities. In doing so the secretarys directed the agency to prioritize certain categories of people over other categories. In the texas versus u. S. Case the judge hannon seems to accept that prosecutorial discretion is appropriate in this context. However he seems to oppose the idea of granting deferred action and notifying the individuals they are not an enforcement priority. Isnt deferred action in and of itself a form of ex erkiezing prosecutorial discretion . How would you counter judge hannons reasoning . Well, i agree with you. I think youre absolutely right. Deferred action is simply an exercise of prosecutorial discretion. The only thing that distinguishes it from some exercises is that government is giving the person a piece of paper saying this what is weve decided to do. I think with respect that judge hannon 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 for example the ones that are codified in the statute or regulations, then properly what he should be doing is advocating for a change in those laws. But president did not touch any of those. Its just deferred action. Professor, in judge hannons opinion he argued that dhs acted unlawfully because it did not allow the public to comment about the new dapa 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 dapa program . Yes, thank you. The apa notice and comment requirements by statute do not apply to general statements, general agency statements of policy which the Supreme Court has expressly interpreted to include any guidance that the agency wants to give about how it plans to exercise one of its discretionary powers which its done here. What this really turned on in this case was whether you believe dhs when they say or exercising real discretion. Judge hannon concludes that they were not, but only evidence he cited was an unsupported statement by one uscis agent, kenneth polinkis, whose support was simply there being decided by Service Centers which by the way is where the vast majority of uscis adjudications are being decided therefore they must be getting rubberstamped. That doesnt follow. The adjudicators take great care to go over the documentation very carefully. There are fbi backgrounds checks and so on. And if theres any occasion in which they think there would be some use in conducting a personal interview then they can and will refer the person to an interview at a field office. Those are very careful adjudications. I dont know where he gets the idea theyre being rubberstamped. Thank you. I yield back. Thank the gentlelady from california. The chair will recognize the gentleman from pennsylvania, the former u. S. Marine good afternoon. Im sorry they wasnt here a great deal. But as i said i have several hearings going on at the same time. Professor legomsky . Am i pronouncing your name correctly . As a prosecutor i had the authority at the state and federal level to use prosecutorial discretion. But only on a casebycase basis. On an individual basis not for a class. I couldnt simply say if i wanted to that those individuals that are driving under the influence, and even though theyre above the. 08, those that are below. 1 im not going to prosecute. Would you agree with that . Yes. Okay. The president s deferred action as far as i see it from a legal perspective is simply saying that im not going to prosecute now but i may down the road and i may not. So wouldnt you agree with me that those that are here that the president want to defer deportation are violating the law . Congressman, i think now i answered your first question too quickly. I should have said yes but. As long as ÷ ; discretion is lift to the individual officer to decide whether to initiative prosecution in the case that youve described, then it does seem to be perfectly legal. I was understanding your hypothetical to mean there was no discretion in this case there is. The secretary has repeatedly and explicitly told the officers that even if the threshold criteria are met, they are still to exercise discretion. And in fact at the courts request sir with all due respect, im not hearing that from the officers. What im hearing from the officers is the direct order do not detain these individuals. Let them go. And again, im going to go back to the issue of on an individual basis, i say yes there is discretion. But the people that are here are here illegally or else the president would not have to issue an order saying were going to defer this. So that is a class of people. That is millions of people. And therefore from an expert in these areas, from a prosecutors point of view and from even some Defense Attorneys point of view that ive spoken with it goes beyond what was intended concerning prosecutorial discretion. Another issue i want to bring up with you concerning the way that we operate here. Now, im sure that you know but media has not been pursuing it that the house of representatives has passed a Homeland Security bill giving the president 1. 6 billion more than he asked for. 400 million more this year than last year. So the only issue is that i hear from the administration that we want to shut down Homeland Security. I would beg to differ with you. And i think common sense dictates that if youre giving more money than the president asked for, that would fund Homeland Security, isnt the fact of shutting the government down. Its the fact that the president has made it clear that he wants the deferred action and congress has said no were not allowing you funds to do that. What say you . On the first point let me observe that uscis has many thousands and thousands of adjudicators. If one of them told you that we are not allowed to use any judgment in deciding whom to prosecute that person is directly violating the secretary it hasnt been one of them. Its been many and its been multistate. I have a little concern about the information im getting from the administration concern to what im getting from the frontline people. Attorney general. You want to weigh in on this prosecutorial discretion . Thank you, congressman. I think its great to go back directly to this point. Because [ inaudible ] has spoken about this. They know you need a casebycase basis. And theyre basically making a mockery of all this by using these magic words. I dont mean to attack the professor here since he was formerly in this job. But theyre stating that theyre doing this, but theres just no way with this kind of volume they are with the percentages that have been approved while the professor discusses selfselection as it says in judge hannons opinion no one the only of the 5 that arent making it through theyre not making it through because of procedural errors. Theres still not individual casebycase basis. You guys have all the authority in the world. That would be the next question is to pull up a bunch of line agents and find out whether or not its true that individual discretion is happening. And i find it just impossible to believe. Im guessing. I see my time has expired. I yield back. Thank you, chairman for fitting me in here. Thank the gentleman from pennsylvania. The chair will now recognize the gentleman from florida mr. Deutsche. Thank you, mr. Chairman. Mr. Chairman, in less than three days the department of Homeland Security is going to run out of funding. At that time, critical Security Operations are going to be scaled back and others will be shut down. Cyber attacks in north korea wont shut down. The recruitment of more terrorists by isis wont shut down. And Gang Violence below our southern border wont shut down. This congress is on the verge of forcing over 100,000 dhs employees to work without pay and put another 30,000 employees on furlough. Their tsa agents and port inspectors, Disaster Relief staff, and Intelligence Experts coast guard members, and Border Patrol officers. My question is, is this how the new Republican Congress treats people who report to work every day to protect our country . These americans have mortgages to pay they have children to support, they have homes to keep warm, car tanks to fill up and local businesses to support. Homeland security funding has nearly dried up for one simple reason. Some members of the majority are more concerned with pleasing the antiimmigrant fringe than paying the men and women who go to work every day protecting the security of our nation. Theyre holding dhs funds hostage. Their demand . That we mandate the deportation, that we mandate the deportation of thousands of students and young people who arrived here illegally as small children. That we deport immigrants who have small children never chose to break the law from the only home that theyve ever known. Now, with little time left until our Homeland Security funding expires, this committee is using precious time on a hearing on whether the president S Immigration executive orders are constitutional. Since the founding of our nation questions involving the constitutionality of executive actions have been heard and resolved by the judiciary branch. And questions on whether the president s executive orders on immigration are constitutional are being heard in courts as we speak. I happen to believe that the president s executive orders on immigration are constitutional. But i also understand that some of my colleagues disagree. I respect that. Still, the fact remains that defunding dhs will not advance my republican colleagues stated goal of nullifying these executive orders. Defunding dhs will not ramp up deportation. On the contrary forcing Border Agents and Immigration Court officials to work without pay or to go on furlough most likely will slow down deportation. Now, my republican colleagues want a Border Security enforcement only approach to immigration policy. Guess what . Thats the policy thats been in place for years and its not working. Even with the recordbreaking deportation numbers of this administration. It is logistically and financially impossible to locate, prosecute and deport 11 million undocumented immigrants in the United States. Like other Law Enforcement agencieS Immigrations and Custom 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 calls it deferred. Do we report a member of gang or College Student who arrived here illegally when she was three . Do we deport the mother of an american child or do we try to keep Families Together . These are the questions that republicans in congress have refused to answer year after year after year with a comprehensive Immigration Reform bill. These are the question that is my republican colleagues left president obama to answer with his november 20th executive orders on immigration. The president s executive orders dont change the law. Theyre temporary. They simply assure undocumented immigrants living working and raising families in our communities that they will not be deported before summer with a felony or a serious misdemeanor. 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 in the process of answering. The safety of the public and the wellbeing of our communities must be the priority of Immigration Enforcement officials, and i humbly suggest thought should also be the priority of this congress. Thank you, mr. Chairman. I yield back. Thank the gentleman from florida. The chair will now recognize himself, gentlemen laxalt, i want to make one observation before professor lemosky and i have a conversation. My colleague from new york, mr. Nadler, suggested you were naive for thinking that the 22 separate times the president 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. And so what i would ask you to please consider is requiring a disclaimer to go beneath every comment made by an elected official so we can know Going Forward whether he or she really means it or whether its just for political expediency. Because i mistakenly thought the chief Law Enforcement officer for the entire country would mean what he said when he was making a legal observation. And it was just news to me from mr. Nadler all that was just political grandstanding. So if you can work around the First Amendment limitations and require disclaimers so we really know whether a candidate or an Office Holder means what he or she is saying it would be helpful to me. I wouldnt feel as naive and perhaps you wouldnt, either, for relying on what the president said. Now professor, what are the limits of the doctrine of prosecutorial discretion . Well, the main limits are the ones that i laid out with more detail in the written statement. But to summarize them briefly, one, the president cannot refuse to substantially spend the resources congress has provided. So if we fully funded everything he wanted with respect to dhs he could not suspend any deportations . I think that is an unanswered question. Thats what you just said. No. I said that was one limit. Well, but i just removed that limit. So if we were to fully fund that, he would lack the discretion to not enforce that law. Correct . I suppose thats theoretically possible. Its just never been decided by a court because it would be rare to find a Law Enforcement agency [ overlapping speakers ] what im trying to get at, professor, if your District Attorney decided that he or she was not going to enforce or prosecute any heroin cases because he or she just thought the war on drugs was a lost cause, other than elections what remedy would the legislative branch have if they disagreed strenuously with that executive branch employees wholesale refusal to enforce the law . What remedy exists for us . Well the legislature could very specifically supercede the decision. Theres nothing in the statute that specifically supersedes the president s priorities. You mean the legislative branch could put in that statue the word shall. You shall prosecute . That would not nearly be enough. What should we put in our dhs funding to let the president know . Help us write that bill professor. I dont know that i could draft it off the top of my head. Take a crack at. It okay. Well, the Legislature Congress could do something similar to what it did when it mandated very specific priorities. Theres language that specifically mandates a priority on National Security, theres language why does the legislative branch have to pick priorities . Why cant we just say we want the law enforced . I was offering one option for how a statute could be drafted. You would agree with me the ultimate remedy is the ballot box, right . If the d. A. Is not enforcing the law, his or her voters can vote them out right . Well, yes and no. There are certain instances in which plaintiffs have been found to have standing to challenge prosecutorial discretion. But i dont see this as being one of them. 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 it . Well, yes and no. Im not sure if the outcome of the election so much as the desire to avoid the kind of political confusion that was a result. Its not political confusion, professor, with all due respect. This im trying to understand what the limits are. There are at least three different categories of law. There are certain laws that say you cant do Something Like possess child pornography. There are certain laws that require you to do Something Like register for selective service. And then there are laws that Congress Passes which require the executive branch to do things, for instance, turn in a budget by a certain day. Is your testimony that the executive has the power to use prosecutorial discretion in all three categories of law . It would depend on the facts and the specifics. Give me a fact where a president can refuse to do something that Congress Tells him or her to do by a certain date. That is not prosecutorial discretion with all due respect professor. That is anarchy. I agree with you, congressman, that congress if specific enough could foreclose the access of a particular type of exercise of prosecutorial discretion. My only point is they have not done so in this case. Let me ask you this because im out of time. Cant president suspend all deportations . If not why not . I believe not. That would contra veen both the acts. Out of the 11 if 4 million is okay can he go up to 8 . My answer to that question is the same as the one i gave earlier. Its impossible to answer without the empirical knowledge of whether that would still leave him with the ability to substantially spend the resources congress has provided. What i would love if you can again im out of time i want you maybe its a suggestion for your next law review article. I want to know if congress fully funds fully funds dhs, does the president then lack the discretion citing the apportionment of resources to exercise discretion . That question has simply never been answered. Id love for you to take a crack at it. Your next law review article. Id love for you to take a crack at it if youd be willing to do so. Chair would now recognize his friend from new york, mr. Jeffries. Thank you, mr. Chair. And let me also thank the Ranking Member of the full 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. So there are approximately i believe 11 million undocumented immigrants in this country, correct . Correct. And presumably one of the options that some in this congress would like to see who disagree with the president s executive order is the deportation of all 11 million undocumented immigrants, correct . Thats amongst the range of ideas within this congress this committee there are some presumably who would like to deport all 11 million. Is that fair to say . Im not here to represent any other members views on this issue, mr. Congressman. Do you think thats a reasonable solution . You know, weve entered this lawsuit as 26 attorneys general because we believe there are serious pressing constitutional issues at stake. And as ive stated as many ways as i can, for us this is not about politics. And its not the job of the attorney general to wade into this political realm. Its not something i plan on doing. Thanks a lot. Now, congress has never allocated the resources necessary to deport all 11 million undocumented immigrants. Thats an accepted fact. Nobody from the far left to the far right argues otherwise. So if the president and the department of Homeland Security lack the ability because we, congress, has not given him the resources to deport all 11 million undocumented immigrants doesnt the department of Homeland Security have the discretion to prioritize the deportation of some undocumented immigrants over the deportation of others . Mr. Congressman, the 26 states that have joined this case along with at least preliminarily the Federal District judge in texas believe that there are limits in this area. Weve kind of gone over them ad nauseum. But the president has overstepped his Constitutional Authority to take care and execute. And as we just discussed, failed to do casebycase. And in almost any way you analyze. Thank you, i appreciate that. Casebycase analysis. I want to move on. Let me just make the point they think should be selfevident. If congress has not give nt president the resources to deport all 11 million undocument undocumented immigrants. It seems that the department of Homeland Security should have the ability to prioritize the deportation of felons over the deportation of families. Thats a reasonable approach since congress has not seen fit to give the department of Homeland Security the ability simply to deport everybody whos in this country on an undocumented basis. Now, in nevada, the office of attorney general is not selffunded, correct . I dont understand. Your funding is provided by the state Legislature True . Yes. The general fund, yes. So youreso you joined this lawsuit and made the decision i believe on january 26. And you announced that decision consistent with your views as it relates to the nevada constitution. You didnt consult with the governor when you made that decision, correct . Mr. Congressman, im independently elected attorney general. And its my job to im not arguing that you should have. I just want to establish the fact that you didnt correct . You know its a matter of public record. I want to make sure im clear and youre clear an the committees clear. You didnt consult with the governor. As is in the record, ourhjw offices certainly communicated about this issue. I appreciate that. If i could end neither record the wall street journal opinion piece, nevadas right choice on immigration in support of your position and ask unanimous consent to do so. February 2nd article. Without objection. It says a very public dispute broke out last week when Nevada Attorney general adam laxalt went against the governors wishes and joined a lawsuit filed by 25 other states. Two of you are both republicans who agreed that the current immigration system is broken and that comprehensive reform is necessary, but mr. Sandoval opposes litigation and has suggested that new Immigration Reform legislation is the best way to proceed. Thats his perspective. I would assume that even though the two of you disagree even though this republican governor believed that you tubingook unilateral action. Would it be reasonable with his disagreement with your actions to defund the office of Nevada Attorney general . Mr. Congressman theres no way Something Like that would happen. Obviously the Attorney Generals Office is the top Law Enforcement for the entire state. We have many, many statutory duties to protect our citizens from Law Enforcement to consumer fraud. And a lot of this is much ado about nothing. The governor and i Work Together on many many issues every day. And im the Legal Adviser to all of our agencies as well as all of our boards and commissions. So this is an unfortunate one issue. But as i said there is no issue with the governor and i. Thank you. My time has expired. I hope you would also agree based on that same logic that even though theres a disagreement between the president , democrats in congress and Congressional Republicans, it would be unreasonable to use your phrase, to defund such an Important Agency the department of Homeland Security, simply because of a political dispute. I yield back. Thank you my friend from new york. Before i go to the gentleman from idaho, mr. Laxalt i would say i think having an independent attorney general is a great idea. Something we ought to try on the National Level at some point. With that mr. Labrador. Thank you, mr. Chairman. I would lying to point out my good friend mr. Jeffries is comparing apples and oranges. There is nobody in congress who is trying to defund Homeland Security except for the democrats. We actually funded fully the department of Homeland Security except for the president s illegal and unconstitutional actions. And it seems like my friends on the other side are willing to put 5 million illegals ahead of the safety and security of the United States. I just want to make that clear. Because there hasnt been we passed a bill that fully funds. In fact, as was previously stated not only fully funds but funds above the levels that the president asked for. We completely funded the department of Homeland Security. The only people that are stopping this funding are democrats in the senate that are not even willing to listen to an argument why we should have this bill pass through congress. So theres nobody here on my side whos trying to defund this. Mr. Legomsky, i listened to your testimony. Ive been sitting here the whole time. I understand youre a professor of law. And you also were the chief counsel for uscis is that correct . Did you ever practice Immigration Law . Did you ever do private practice . No, i did not. I did 14 years of private practice in Immigration Law. And i was i defended and represented a lot of people who were in legal jeopardy in the immigration system. What do you think one of the attorneys working for i. C. E. Or one of the attorneys working at the time for ini. N. S. If i would have gone up to them and said mr. Attorney or mrs. Attorney could you please give me prosecutorial discretion because you guys dont have enough funds to enforce the law in the United States . What do you think the answer would have been to my Little Office in idaho . If the only reason were that they dont have enough funds the answer would probably be no. But of course the real question is, we dont have enough funds and here is why i think my client should be a low priority. In that case i would hope a reasonable i. C. E. Agent would take that in consideration. I asked that many times. You know what the answer was every single time . No. Because they never did that. Because it was based youre confusing whats really happening here and ive been listening to you very clearly. Can you name you said your own words were that there is a direct criteria so theres a threshold of criteria. Can you name one case that has been put in deportation or removal proceedings . Just one case that has been put in deportation or removal proceedings that has met the threshold of criteria . I have to answer in two parts, im afraid. Just one case. No, i understand. But i have to explain. Judge hannon in his order judge hannon specifically ordered the government to give some examples of cases in which people were found to have met the special criteria but nonetheless were denied [ overlapping speakers ] have they provided that information . Thats what i was leading up to. Not only did they provide the information, but but mr. Neufeld in his sworn affidavit offered several specific examples of such cases. Nonetheless judge hannon inexplicably said the government has not provided indications of cases. Mr. Blackman . Paragraph 24 the declaration the only citations were gang membership or gang affiliation or fraud. The only examples the department of justice could put forth when defending this policy was gang member or fraud. The gang membership would make you a high priority for National Security risk. Fraud i dont think theres much discretion saying someone committed fraud. The only examples are you saying fraud in the application or previous fraud . Previous fraud for lying on the application. Yes. For lying on a previous application, right . These are the only examples in neutral declaration brought forth. If these are the best examples they have there isnt much discretion. Especially the fraud criteria would make you ineligible for any form of relief under Immigration Law. Yes, the secretarys policy has nothing to do with the casebycase expression. Theres not much there. That was in the paragraph 24 neufeld order. You say it is not illegal to tell a person were not going to proceed against you, right . Thats not putting you in deferred action. And i think youve been misleading us a little bit. I dont think youre doing it on purpose because ive really enjoyed your testimony. But there is a difference between not deporting somebody not putting somebody in removal proceedings, and putting them in deferred action, is there not . Yes. But the difference is that in the latter case youre affirmatively telling them that. But the reason youre doing it because you want to grant them benefits. That is the main difference. The reason i had cases where they were put in deferred adjudication. And its because there was some criteria that they met, they were either helping the prosecutor, they were 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 them a specific benefit. And thats what this administration is doing. This administration is deciding not just were not going to deport people, theyre saying we want to put them in a criteria that under the law theyre going to receive specific benefits. And theyre doing that. So could this president say tomorrow that i want every person whos here in the United States illegally from mexico i want to put them in deferred action . Could he say that . My gut instinct is to say that that would be very difficult because it would turn on the empirical question of whether after doing so he were still able to substantially spend the resources congress intended. You keep saying that. They can always spend the money. Thats the most ridiculous statement ive heard. They will always spend the money. The question is, does he have the discretion to just pick one category of people and say that im not going to deport you . That has never been done in immigration. It was always done on a casebycase basis. And at this point this president has decided not to do it on a casebycase basis but to categorize groups of people and put them into a category that grants them benefits. Thats whats illegal. The gentleman is out of time. The professor may answer if he would like to. As you know congressman, especially from representing people in the past, there are lots of reasons people have been granted deferred action including a range of humanitarian reasons. As for your last example where he granted only to mexican nationals . I would indicate there are lots and lots of cases where president s have granted functionally equivalent discretionary relief to people based solely on their country of origin. So that would present a closed question. Based on cps and something that the law already granted the president the authority to do. So lets not [ overlapping speakers ] the gentleman is out of time. I thank the gentleman from idaho. The chair will now recognize the gentleman from illinois and apologize for overlooking him last time. It was inadvertent. I know that, mr. Chairman. Good to be with you all this afternoon. Could i have mr. Chairman, could i have my staff assistant hand out the memorandum that was november for all of our witnesses to have a copy . Yes, sir. Thanks. While thats being done could i ask unanimous consent to put in the recommendations of nefeld and cb commissioner . Without objection. Thank you, mr. Chairman. First of all, i think we should use this document because its a letter written 1999 signed by henry hyde and lamar smith and Bill Mccollum and a series of other outstanding republican chairmen of this committee. In which they write to then janet reno saying you guys got to promulgate some discretion here. Youve not done it enough. And you have the ability and the right in law to do exactly that. And you havent done it. So 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 that the administration should use discretion. And in the memorandum just for the public it says we write to as many people believe you have the discretion to alleviate some hardships. And we solicit your views as to why you have been unwilling to exercise such authority in some cases. In addition, we ask you to view the 1996 amendment eliminated that discretion. Will the gentleman yield . I cant. You cant or not possible or dont want to . Not right now. But im in the middle of reading. Youre reading a letter the gentleman from illinois controls the time. Will he yield . I cant. If i could have that time back. Because i was trying to have a conversation. Ill be happy to give you time back if you put anytime proper context the letter the gentleman from illinois controls the time. Youve got three witnesses to one already. Because when you left the room to talk about this the gentleman from illinois controls the time. Its 31. Its stacked. Well, 32 right now. 32. Okay. 32. Just so the gentleman knows we stop the clock at i came in here to try to have a conversation. But you see how it gets boiling here. Just reading a memorandum signed. Its here. Ive entered this into the record a dozen times. So everybody should have a copy of it by now. Everybody should know im bringing it up each and every time anybody talks about discretion. Because its established. Henry hyde illinois chairman of the committee signed this. Lamar smith. No pushover when it comes to those Illegal Immigrants. And how the American Government should treat them. So it says indeed i and regional counsel have taken the position apparently wellgrounded in case law the i. N. S. Has prosecutorial discretion in removal proceedings. See attached memorandum. Further a number of press reports indicates i. N. S. Has already employed that discretion. Optimally removal proceedings should be terminated only upon specific instruction from i. N. S. Officials issued in accordance with agency guidelines. However the agency has not promulgated such guidelines. Lets make it clear. Its wellestablished in the law. Unlike other parts of the federal government that there is discretion when it comes to the application of the law and Immigration Law. So i just want to say and the attorney general, i have a definition here of politician. Are you a politician . Because i have websters. Are you a politician . I am an elected representative, yes. Youre a politician. Right . Youre elected. Ill find it. It will say elected representative. So you ran for public office. So i can find you other definitions of politician. So just that were clear youre the politics business, right . And thats what you do and thats how you earn a living. So i just came here to say look. The Supreme Court is going to answer this for us all. Thats why were a nation of law, right . And we all know where this is going. Im not a lawyer. But i happen to know this is going to go to the fifth circuit. Its a very they picked the most conservative judge they could possibly find to hear this case. They didnt come to illinois with this case right . They didnt go to new york. They didnt even go to nevada to pick the case. No, they went and found a judge who had already not him but in his district so they could go. They went to southern texas. So look this is going to be decided. But i just want to make it clear. Because there seems to be some confusion, mr. Chairman, that people keep saying that what the president did was unconstitutional. And the former attorney general now governor, another politician in texas who was the attorney general, tweeted its unconstitutional. Any of you read into the decision in anybody read into the decision . He said it was unconstitutional . Nope. Yet you have the governor of the state of texas a form attorney general, saying its unconstitutional. You see the parameters were dealing in. Were dealing in political parameters. On what should be an issue about how it is we deal with an immigration system. I just want to go back to my colleagues who spoke earlier. The fact is 4 . Many of my colleagues like to argue the following. Well, why dont you just round up all the criminals and deport them . Because we only provide sufficient money for 4 . Let me repeat that. We only provide and no one has ever come here to suggest that we should provide any more money. So its always about the criminal. Its always in context. Even my friend, im sorry he went. He said, oh mexico. Why are we always talking about mexico . Why did that federal judge only describe the border . What happened to the border at l. A. X. . What happened to the one at ohare. What happened to the one in new york city . Kennedy . All of those are point of entries in which millions and millions of undocumented immigrants have come into this country documented and have overstayed and are part of the 11 million. And therefore, but can be provided relief under the president s order. So my only point to you is youre not going to deport 11 Million People. This is a political case. It will be judged on its merits in the Supreme Court. Ill just end with this because the chairman has been mr. Chairman, i want to find a solution to the problem, not keep having hearings here where the four distinguished jurists all know a lot about the law are not going to decide the case. So why dont we find a solution to the problem of our broken immigration system so that we can provide solutions to people . Because im sure most of us would agree we should go after gang bangers we should go after drug dealers rapists and murderers and not people trying to raise their families in the United States that are caught up in a broken immigration system. And lastly this is a very perilous place for my friends in the majority. Because you have 5 million american citizen children who are never going to forget for generations how it was you treated their mom and their dad. How it was you treated their mom and their dad. And if you treated them in a cruel manner. And thats a community. Were not a community in which the undocumented and the documented kind of live in a caste society. You know what fourth of july . Were having hot dogs and hamburgering. And on thanksgiving were having turkey all together with our papers. I am trying to treat my friend from illinois in a good way. Youre so generous and i apologize. You do not need to apologize. I thank the gentleman from illinois. The chair would now recognize the gentleman from texas, the former u. S. Attorney mr. Radcliffe. Thank you, mr. Chairman. Id like to yield my time to the gentleman from South Carolina. Mr. Collins. I think hes from georgia. We kicked him out of South Carolina several years ago [ laughter ] hes got warrants outstanding. Hes from georgia now. I want to clarify again we did this last time. Its groundhog day. Here we go again. The letter spoken of which i went through this about a month or so ago was dealing with legal permanent residents. It was not dealing in this discretion of illegal or crossing. It is not dealing with this issue. So basically to take a letter at the time when things were taken out of a 96 legislative reform in dealing with this lets at least be fair with the letter. And to come up here and to use a letter and take people who are no longer in this body who no longer can defend themselves, even some who happen to be here just not in this committee, to say that is just wrong. I believe the gentleman from illinois has a good heart. I just believe hes dead wrong on many things dealing with this. This is one, though, lets at least have an honest discussion about this. Lets not at least throw in appear an argument that is not there. This is whats wrong right now with this. This is the wrong with this argument. This is whats wrong the American People dont get. And i appreciate the gentleman yielding with. Yieldinging. With that i yield. Thank the gentleman. Not sure if my fauxpas offended south carolinians and georgians but my apologies to both. Probably equally. I thank all the witnesses for being here today. Enjoyed reading your testimony and hearing some of it. Professor legomsky, its very clear to me that you obviously think the president s november 20 executive order was constitutional. But it also appears to me that while you think that the president s action was lawful, from reading the tone and tenor of your testimony and your articles, it also seems to me that you want him to be right. I do. I believe it what hes doing and think hes taking a sensible action. So yes i confess to that. So do you consider yourself an advocate for the rights of people that are in this country illegally . Well, i consider myself an advocate for the legal rights of all people, whether they are here illegally or no. Everyone has certain rights. Okay. So do people who come across our borders without permission, are they here illegally . Yes. Okay. Is there a reason that you never refer to them as illegal aliens or folks that are here illegally . Yeah. I have referred on occasion to people who are here illegally. But i dont like the phrase illegal alien because i dont like the idea that the word illegal would be used to describe a person. Theyve acted illegally. Theyve entered illegally. I have knob oklahoma why to that. But the phrase illegal alien offends many people. Because youre defining an entire person by one act. So to the chairmans prior question, im trying to as i heard your testimony is the issue here really a constitutional one or is it a budgetary issue . In other words, if we remove the limited resources question and issue, does this all go away in your opinion . I think thats a very thoughtful question. And it does tie in with a thoughtful question that mr. Gowdy asked earlier. I dont think you can separate the two. Whether this is constitutional depends on whether the president has a justification for choosing the priorities he has. One of the factors that informed those priorities is the reality of limited funds. Professor i think i know your thoughts on judge hannons issuing the injunction. I think thats very clear. But i missed some of your testimony. Have you opined on whether or not you think the administration has violated the apa . I have. Do not believe they have violated the apa. Basically the reasons i can state succinctly, the only argument made for why the apa notice and comment procedures might be thought to apply would be that they didnt really involve the exercise of discretion. For all the reasons give nn myn in my written testimony theres simply no factual record in the report for that conclusion. Your written testimony that was provided doesnt address is the governments response in seeking a stay to that injunction. Do you agree the governments on solid legal footing there . Im sorry. Do you mean requesting this stay . Yes. I do. A stay is addition discretion judgment. Certain factors inform is how likely are you to succeed on the merits . How much damage will there be on either side if the stay is not granted and so on. I think reasonable minds could disagree about the stay. My own view it would make sense to grant it. Can you explain to me, professor, from your perspective, how our federal government is irreparably harmed by not conferring benefits on what they refer to as third parties, what i would refer to as folks in this country illegally. Can you explain to me how the government would be irreparable harmed . In the stay motion the government asserted two different harms. One harm is simply to the Governments Authority granted by congress to establish national Immigration Enforcement policies and priorities. The other harm which is much more tangible is that at this point the government has already invested resources in hiring adjudicators, leasing physical space and so on that would eventually be recouped by the revenue that comes in from the requests. But if that were to be shut down then this money would be wasted. And in the meantime the government does have to continue its preparations if its to resume this on schedule. Well, so the government asserts to your point quote when these harms are weighed against the financial injuries claimed by the plaintiffs the balance of hardship tips decidedly in favor of the stay. I hear you saying you agree with the governments assertion with that respect . The gentleman from texas is out of time but you can answer the question as succinctly as you can professor. I strongly disagree with the idea texas is going to lose even one penny because of this for every reasons. They never allege are going to have to hire a single additional person to process these drivers licenses. Its a marginal additional cost not the average amortized cost that should count. Wait a minute in fairness professor, all these folks if they were allowed to stay under the president s executive order they could apply for texas drivers license. Yes. And each of those would come at a cost of the state of texas of 130 per license times hundreds of thousands of folks in the state illegally. Two things. The first point as quickly as you can. Im already two minutes over. Ill go to the second point. The second point is that while texas to its credit offsets that cost by the revenues it would receive from the applications, it still comes out to a negative if thats all you take into account. What they dont take into account is what so many empirical studies have now demonstrated, which is their tax revenues will increase dramatically as a result of dapa and daca. Theres a study that specifically finds the same thing to be true for the state of texas. They will gain financially quite a bit from this. The third thing is if you adopted this theory i of [ inaudible ] think for a moment what it would lead to. Its the mere fact that when a federal benefit is granted, someone could then apply for a state benefit. For enough to confer standing. Every time uscis grants anything to anyone, the state of which that person is a resident could then come in and say we have standing to challenge that. Surely thats not what the standing doctrine was designed to accomplish. Thank the gentleman from texas. The chair will now recognize the gentleman from michigan, mr. Bishop