Act, warrantless surveillance in the Bush Administration and things like that. I must say that everything we are talking about today is laughable in my opinion in the context of these problems. I am particularly struck by the overwhelming hypocrisy of the claim that the president in interpreting the law and in refusing to interpret the law in the way that would drive a stake through the law is not enforced. Its amending that he and force the law in the way that the person making the demand is not taking care and must be painfully executed. Its to the president to interpret the law within the boundaries that he has in a way that makes practical implementation of the law to fluctuate the will of the congress and the fact people that want to sabotage the wall and for if no it not to work ane no bones about it save he is not obeying this particular sentence in order to make it work. Talk about hypocrisy. Let me ask a question. Have you made this statement i want to ask mr. Lazarus the following question. The judge in the District Of Columbia circuit recently in the decision by judge kavanaugh wrote the following. The executives also tutorial discussion illustrated the key point of the separation of powers. One of the greatest unilateral powers the president possesses under the constitution at least in the domestic sphere of the power to protect individual liberty by enforcing the private behavior for precisely the power to seek charges against violators of the federal law would pardon the federal law. This would seem to support the broad discretion in the executive branch who said enforcement is therefore nonenforcement priorities of judge, immigration and other law. Is it not related to the alleged violation of the constitution by the president sitting Immigration Enforcement priorities outlined earlier to. Thank you congressman. The judge who was one of the most respected and conservative judges on the federal bench, but he said here is absolutely correct and the principles that hes enunciating are precisely why according to face with the issue is undoubtedly to uphold as perfectly compatible with the president s discretion and the program that my co panelists here is a gross violation of his duty. Its an important decision about a year and a half ago, the five to three majority including Justice Kennedy who wrote the opinion behind the teacher of the removal system on the immigration area by the immigration officials. The initial matter he must decide whether it makes sense to pursue the removal out on the beat cobol and they went on to say that the president of the Immigration Law that forces the media concern and another as workers try to support their families likely pose busting wir than alien smugglers were aliens who commit a serious crime. And thats very recent decision like the judge kavanaugh blank remarks is completely at odds with the critics interpretation of the president enforcement in the country. If mr. Rosenkranz agreed with the judge kavanaugh unanimous consent for one additional minute so he can answer that, mr. Chairman. Without objection to the general will have an additional one minute. Judge kavanaugh said the president may not decline to follow the statutory mandate or prohibition simply because policy objections. The Congress Appropriates no money for the program the executive officer cannot move forward. But absent the claim of constitutionality that havent been rejected by the final court order, the executive order must abide by the statutory mandate and prohibitions. The judge kavanaugh blank right side the question was delay the. Thank you. The chair recognizes the gentleman from ohio for five minutes. Thank you mr. Trabant. Mr. Rosenkranz and mr. Cannon, mr. Lazarus commented upon the previous writings that you were not afforded the opportunity to respond. Did you want to take a moment to do that . And i will go to you first mr. Rosenkranz. Thank you very much. There was a comment about an oped i wrote in the wall street journal comparing lincoln blank suspension of cbss corpus with president obama blank suspension of obamacare. Of course i agree with mr. Lazarus. They are not the same as obamacare. But what is striking about the comparison is that president lincoln welcomed the involvement of congress. Welcome to the congress to ratify what he had done to pass the statute justify eating. He was concerned that they had overstepped the Constitutional Authority and welcom welcomed cs ratification of its action. President obama by contrast actually threatened to veto the statute that would have ratified his action. In fact i think is a startling contrast i was trying to bring out in that oped. They have offered despite two years of people like me raising this issue with the irs is trying to do is illegal. They have yet to offer one shred of, when statutory provision or one shred of evidence that supports their claim that the statute authorizes tax credit through exchanges of established by the federal government under section 1321 or that it was congresses intent for the statute to authorize tax credit through those exchanges. So theres a lot more to be said about all of this. If i make would like to respond to some of let me cut you off at this point. I only have all bit of time. Mr. Turley, you mentioned something along the lines of your concern that president obama is becoming the very danger, separation of powers was meant to prevent. And mr. Lazarus mentioned earlier that, i dont know exactly who hes referring to, but some are hyperventilating about this whole topic. Would you want to comment on both of those things, either in relation to each other or not . Mr. Lazarus maybe responding to my labor breathing with the flu, but if not, my testimony the reason i think theres this disconnect in our view, is we obviously read history differently. I view the Constitutional Convention is quite clear. The framers were students of history, james madison. 150 years before they took a pen and wrote out this clause there was a fight with james i about what was called royal prerogative. Very similar to what president obama is claiming, the right of the game to essentially stand above the law to reform the law to the kings views. Im not saying that president obama is a monarch but that was the issue that gave the impetus to this clause, in my view. The language did not change very much. Later, people like benjamin the dispensing power of the president. He wrote a very good paper about when the president can refuse to enforce laws. He basically said he could only be done they could only be done when theres intrusion upon executive power. By the way, thats was involved in the myers case we talked about, referred to earlier. Or if it was clearly unconstitutional, and that second issue, established had to be very, very clear so the president does not exercise that authority. This is a i would respond. We dont have to hyperventilate to look any problem and take it is not about who the president it today or what hes trying to achieve. What is lacking from the other side is any notion of what the world will look like in a tripartite system if the president can literally ignore any deadline, a major piece of legislation, exclude whole classes of people. The question is what is left that madison described . I would suggest whats left a very dangerous and unstable system. Thank you very much. My time is expired. Yield back. The chair recognizes the gentleman from virginia for five minutes. Thank you, mr. Chairman. Mr. Lazarus, first of all, on the aca it seems to me absorbed by the federal exchanges absurd for all intents and purposes deserve as the state exchange, state marketplace, that would be, it would be absurd to interpret that they are there for all intents and purposes except for the purpose of the bill, which is the subsidies. Is that right . Is obviously absurd, congressman scott, and, therefore, to say that the president is violating his duty to see that the law is faithfully enforced because he interprets the law in a way that is consistent with his purpose, and consistent with the known objectives of the congress that enacted it is also it seems to me quite absurd. Thank you. Congressional Research Service had several examples in prior administrations for the irs, delayed enforcement despite a congressionally mandated effective date. Can you say a word about the president s power to delay implementation of provisions, particularly when compliance and was logistically impossible to . Yes. And i think actually despite the sparks that are flying around this room about the president s action with respect to the Affordable Care act, these principles are quite simple. Several people have noted that the president cannot refuse to enforce a law or policy reasons. Obviously, correct. Certainly correct, it is also obviously not what the president is doing. Does the president have policy objections for the Affordable Care act . I dont think so. Facing in the enforcement of major statute like the Affordable Care act or the Clean Air Act, or other laws, certainly laws that the epa administers, ms. Statutory deadlines very, very quickly because it simply is statistically impossible to prudently implement them in accordance to those deadlines. This is just a tempest in a teapot. Thank you. And if i can answer, said one for the thing about your first question, congressman scott. We should understand what the consequences of mr. Gannons interpretation of the aca would be, and why i they would drive a stake through the heart of the aca and every federal exchanges state. Its not just that it would keep maybe 80 of the people who are expected to enroll for insurance on exchanges from being able to afford the insurance. 80 . So it would really record that part of the program. But actually it would probably just cost the entire individual insurance market, even for people who could afford insurance, to implode because it would so screwe screw of the acl calculation. So it really would drive a stick to the heart of the law in the states, and to say that congress intended pun intended to do that, i dont, its just pretty hard to argue. Thank you. In november 1999, 28 bipartisan members of the house wrote the attorney general a letter and expressed concern that ins was pursuing removal in some cases quote when so many other more serious cases existed. How do you set priorities as the president can set priorities and enforcement when theres obviously not enough money to enforce each and every provision for the letter of the law, how do you set priorities if he cant, cant enforce each and every provision . The answer is the essence of the executive responsibility to do just that, and i might note that i think that president obama has increased the number of deportations to the consternation of some of his own supporters, a very great deal as everyone here im sure is well aware. And my understanding is just increased to 400,000 people a year which is to or times as many as the number was around 2000. The reason for that is thats all the funds that congress has appropriated. My time is about to expire. I wanted to get in one of the question. Can you talk about the obligation of the president to defend defense of marriage act replace it to be unconstitutional . Yes. I think i agree that the president should only very, very rarely and with extremely good reason declined to defend a law in court. And ive written about that, and i think its hard to fault with the president did in the case of doma. He concluded with very good recent there was simply no argument that could justify, justify doma. He notified the congress of this decision. He continued to enforce the he invited congress to intervene in litigation to present at that point of view. And ultimate the Supreme Court vindicated his judgment. So it seems to me its very difficult to complain to blame everyone on all sides of these debates, and in both parties agree is that it contemplates the president may decline to enforce a law which he concludes in a responsible it is unconstitutional. The gentlemans time has expired. Spent i ask unanimous consent to introduce into the record the letter i refer to. Without objections order. The gentleman from california is recognized. Thank you, mr. Chairman. Mr. Lazarus, i hear you on the president deeply believing in his policy, his signature legislation, the Affordable Care act. But he deeply believes, im sure, in every item that he wants appropriated from congress. But two years later it expires, right . And two years later he cant just spend money unless he comes back to congress for more money, isnt that true, that its implicit in the constitution . I apologize but it dont really understand the question, congressman. In the president s authority has run out, he must come back to the congress for new authority. In the case of the Affordable Care act, things which were not in the law have gone wrong. This act, this 2400 pages that had to be passed and then read, as flaws in it and these are fatal flaws if not corrected. Isnt that so . Including the absence of an answer to how do you subsidize if, in fact, a state chooses not to do it . Mr. Rosenkranz, if the law does not give the President Authority and something goes wrong, im presuming that the framers always intended that you would come back to the congress to resolve that need for additional authority. That it happened, as earlier Abraham Lincoln came back to have his suspension of habeas, attempt to have it ratified because he knew he didnt come even if he did by executive order he had limited jurisdiction. He wanted to have a codified. I think a good example would be macarthur the promise in war, they came back with a recession act in order to undo some of the promises that were made in war to the filipino people, and so on. Is there anything in the Affordable Care act that is different than any other time that something thats not in the law occurs thats outside the law that you come to congress and say, i need authority to ask . Please. I quite agree. Its quite startling that this congress, this house offered to ratify exotica what the president wanted to do, actually passed a bill which would have delayed the implemented exactly as the president wanted. And far from welcoming this, the president actually threatened to veto it. To me thats quite startling. I want to go through a couple things i think we can all agree on and to do something mr. Turley said. Would you all agree, without further adjudicating, that when andy jackson heard from the u. S. Supreme court that had no right to move native americans out of their homes to oklahoma, and he then did it anyway saying essentially to the Supreme Court, you have no army, therefore, im doing it, that he was outside his Constitutional Authority . You at all agree to that . Let the record show i had all all shaking his. When Richard Nixon tried to withhold his tapes which were essentially evidence of his complicity in the watergate and the coverup, and the Court Ordered the states even after he fired a number of people excellent, you would all agree that the courts action was appropriate, that there was a crime, it went to the white house and ultimate led to Richard Nixon resigned. You would all agree it was appropriate, i assume, for the court to intervene in this constitutional dilemma of a president who didnt want to turn over evidence related to describe. Would you all agree . I would. Good. Yes state in which you all agree, maybe, maybe not, that when president bush asserted in the Harriet Miers case, as was referred to earlier, when the judge essentially said congress has a need to get people in front of it, whether that person speaks were not, ultimately, and this is mr. Conyers case, that, in fact, the court intervened and said yes, i have a right to decide and you must produce witnesses. You would all agree that was a good balance of power decision by judge bates, is that correct . In george w. s case. Okay. Then on what basis, on what basis does president obama say hes above the law win in fast and furious he asserted that the court had no right to even decide whether or not a lawfully delivered subpoena should, in fact, be complied with . And in this case, judge amy jackson has ruled that yes, she has the right to decide it. The question for all of you is, if we cannot go to the courts, as congress with our standing after a contentious vote, if we cannot go and get the court to decide the differences between the two branches, that, in fact, as some identified friends have asserted, the imperial presidency is complete. Isnt that the most essential item that is, in fact, we dont have standing, if, in fact, the court doesnt have a right to decide, then executive power is essentially unlimited . Mr. Crowley, you have written on this. May i answer . I would ask without objection the gentleman is granted one additional minute. I agree thats part of the problem here, that we created a system by which president s can assert powers that others here is unconstitutional. I think president has in this case but in the department of justice proceeds to try to block any effort of judicial review. This administration has been very successful in that, largely on standing grounds. And so theres no ability to challenge these things even if theyre viewed as flagrantly in violation of the constitution. I would also add with reference to your earlier point, one of the things the court says with those of us represent members go to the court and say the president is acting unconstitutionally, we hear this mantra from the judge is saying you have the power of the purse. In this case is the power of the purse being violate a . If hundreds of minutes of dollars in essentially shifted in a way that Congress Never approved . And we have in many ways the perfect storm. Even the power of the purse is often cited by the court really doesnt mean much if the president can just shoot fund unilaterally without any type of review. Anyone else . I guess the only thing i would say and i dont claim to be an expert on standing, as i stated i more interested in standing of course which was the question. Does the court, does the federal court have the right and obligation to make those Vital Decisions on essen