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 allow