[House Report 113-376]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 113-376
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FAITHFUL EXECUTION OF THE LAW ACT OF 2014
_______
March 7, 2014.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 3973]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 3973) to amend section 530D of title 28, United
States Code, having considered the same, report favorably
thereon without amendment and recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for the Legislation.......................... 2
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 6
New Budget Authority and Tax Expenditures........................ 6
Congressional Budget Office Cost Estimate........................ 6
Duplication of Federal Programs.................................. 6
Disclosure of Directed Rule Makings.............................. 6
Performance Goals and Objectives................................. 7
Advisory on Earmarks............................................. 7
Section-by-Section Analysis...................................... 7
Changes in Existing Law Made by the Bill, as Reported............ 7
Dissenting Views................................................. 9
Purpose and Summary
The Faithful Execution of the Law Act amends section 530D,
title 28, United States Code, in order to require the Attorney
General of the United States to report to Congress any time a
Federal official establishes or implements a formal or informal
policy to refrain from enforcing any provision of Federal law.
It further requires the Attorney General to report on the
reason for the establishment or implementation of such a
policy. These changes to section 530D will increase Executive
Branch accountability and transparency and help ensure that the
President takes care that the laws be faithfully executed.
Background and Need for the Legislation
Article II, Section 3, of the Constitution declares that
the President ``shall take Care that the Laws be faithfully
executed.'' This clause, known as the Take Care Clause,
requires the President to enforce all constitutionally valid
Acts of Congress, regardless of his own Administration's view
of their wisdom or policy. The clause imposes a duty on the
President; it does not confer a discretionary power. Thus, the
Take Care Clause is a limit on the Vesting Clause's grant to
the President of ``the executive power.'' In other words, while
the Vesting Clause gives the President discretion about how to
enforce the law, the Take Care Clause provides that he has no
discretion about whether to do so.
However, President Obama has failed on numerous occasions
to enforce Acts of Congress that he disagrees with for policy
reasons and has stretched his regulatory authority to put in
place policies that Congress has refused to enact. For
instance, while Congress is currently debating how to reform
our immigration laws, the President effectively enacted the
DREAM Act himself by ordering immigration officials to stop
enforcing the immigration laws against certain unlawful
immigrants. When he could not get his preferred changes to the
No Child Left Behind education law, he unilaterally waived its
testing accountability provisions. When he objected to the work
requirements in the bipartisan welfare reform law, he granted
waivers that are specifically forbidden by the statutory text.
Instead of working with Congress to amend Federal drug
enforcement policy, he has instructed prosecutors to stop
enforcing certain drug laws in certain states and mandatory
minimum sentences for certain offenses.
And, most notably, the President has, without statutory
authorization, waived, suspended, and amended several major
provisions of his health care law. These unlawful modifications
to Obamacare include: delaying for 1 year Obamacare's employer
mandate; instructing States that they are free to ignore the
law's clear language regarding which existing health care plans
may be grandfathered; and promulgating an IRS rule that allows
for the distribution of billions of dollars in Obamacare
subsidies that Congress never authorized. The House has acted
to validate retroactively some of the President's unlawful
Obamacare modifications. However, rather than embrace these
legislative fixes, the President's response has been to
threaten to veto the House passed measures.
The President's far-reaching claims of executive power, if
left unchecked, will vest the President with broad domestic
policy authority that the Constitution does not grant him.
Although President Obama is not the first president to stretch
his powers beyond their constitutional limits, executive
overreach has accelerated at an alarming rate under his
Administration. Indeed, according to testimony received by the
Committee, ``[w]e are in the midst of a constitutional crisis
with sweeping implications for our system of government. There
has been a mass gravitational shift of authority to the
Executive Branch that threatens the stability and functionality
of our tripartite system.''\1\
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\1\Enforcing the President's Constitutional Duty to Faithfully
Execute the Laws: Hearing Before the House Committee on the Judiciary,
113th Cong. (2014) (statement of Jonathan Turley, Professor, George
Washington University School of Law).
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To help prevent executive overreach and require greater
disclosure when it occurs, on January 29, 2014, Representative
DeSantis introduced H.R. 3973, the ``Faithful Execution of the
Law Act.'' This legislation promotes transparency and honesty
in the Federal Government by forcing greater disclosure of
Executive Branch policies of non-enforcement of Federal laws.
The Justice Department is already required by law to report to
Congress on non-enforcement policies based on the grounds that
the law in question is unconstitutional.\2\ H.R. 3973 extends
this duty more broadly and extends the grounds for such reports
beyond constitutional objections by the Executive Branch.
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\2\See 28 U.S.C. Sec. 530D(a).
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Currently, when the Department of Justice stops enforcing a
law on the grounds that it is unconstitutional, the Attorney
General is required, pursuant to 28 U.S.C. Sec. 530D, to report
to Congress. Section 530D provides in relevant part:
The Attorney General shall submit to the Congress a report
of any instance in which the Attorney General or any officer of
the Department of Justice establishes or implements a formal or
informal policy to refrain from enforcing, applying, or
administering any provision of any Federal statute, rule,
regulation, program, policy, or other law whose enforcement,
application, or administration is within the responsibility of
the Attorney General or such officer on the grounds that such
provision is unconstitutional.\3\
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\3\28 U.S.C. Sec. 530D(a)(1)(i).
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The Faithful Execution of the Law Act strengthens this
provision by requiring the Attorney General to report to
Congress when any Federal official establishes or implements a
formal or informal policy to refrain from enforcing a Federal
law and to provide the reason for the non-enforcement policy,
regardless of whether it is being done on constitutional or
policy grounds.
According to testimony from Professor Jonathan Turley
regarding H.R. 3973, ``it is hard to see the argument against
such disclosures. Too often Congress has been informed of major
changes by leaks to the media.''\4\ Congress should not have to
rely on media leaks and other unofficial sources to find out
that the Executive Branch has decided not to enforce Federal
laws. Congress cannot possibly know the extent of Executive
Branch non-enforcement of the laws without mandatory disclosure
of all non-enforcement policies by the person who should be
fully aware of such policies, namely the Attorney General, the
nation's chief law enforcement officer.
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\4\Turley, supra note 1.
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Enactment of H.R. 3973 is essential if Congress is going to
play an active role in overseeing that the separation of powers
between the branches is maintained and that the President is
faithfully executing the laws.
Hearings
The Committee on the Judiciary held 1 day of hearings on
legislation to enforce the President's constitutional duty to
faithfully execute the law. Testimony was received from Rep.
Jim Gerlach (R-PA); Rep. Tom Rice (R-SC); Rep. Diane Black (R-
TN); Rep. Ron DeSantis (R-FL); Jonathan Turley, Professor,
George Washington University Law School; Christopher Schroeder,
Professor, Duke University School of Law; and Elizabeth Price
Foley, Professor, Florida International University College of
Law.
Committee Consideration
On March 5, 2014, the Committee met in open session and
ordered the bill H.R. 3973 favorably reported, without
amendment, by a rollcall vote of 17 to 11, a quorum being
present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 3973.
1. An amendment by Mr. Conyers to provide that nothing in
the Act would limit or affect any action taken by the Attorney
General or any officer of the Department of Justice or any
other Federal officer that concerns the foreign affairs of the
United States. Defeated by a rollcall vote of 11 to 18.
ROLLCALL NO. 1
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Ayes Nays Present
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Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Coble (NC)................................. X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................ X
Mr. Holding (NC)............................... X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Smith (MO)................................. X
[Vacant].......................................
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................ X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
------------------------
Total...................................... 11 18
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2. Motion to report H.R. 3973 favorably, without amendment.
Passed by a rollcall vote of 17 to 11.
ROLLCALL NO. 2
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Ayes Nays Present
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Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Coble (NC)................................. X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Bachus (AL)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID).............................. X
Ms. Farenthold (TX)............................ X
Mr. Holding (NC)............................... X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Mr. Smith (MO)................................. X
[Vacant].......................................
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Mr. Scott (VA)................................. X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR)............................. X
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Garcia (FL)................................
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
------------------------
Total...................................... 17 11
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Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
The Committee advises that a Congressional Budget Office
cost estimate was not available at the time this report was
printed.
Duplication of Federal Programs
No provision of H.R. 3973 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that H.R. 3973 specifically directs
to be completed no specific rule makings within the meaning of
5 U.S.C. Sec. 551.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
3973, will increase Executive Branch accountability and
transparency and help ensure the that President takes care that
the laws be faithfully executed.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 3973 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Section 1. Short Title.
Section 1 provides for the short title of the legislation,
the ``Faithful Execution of the Law Act.''
Section 2. Amendment to Section 530D of Title 28, United States Code.
Section 2 makes two changes to 28 U.S.C. Sec. 530D. First,
it expands the reporting requirements to cover non-enforcement
policies of any ``Federal officer.'' Section 530D currently
requires the Attorney General to report to Congress on non-
enforcement policies adopted by the Attorney General and any
other official at the Department of Justice. Second, it expands
which non-enforcement policies are covered by the law.
Currently, section 530D only requires reports to be made when a
non-enforcement policy is adopted on the grounds that a Federal
law is unconstitutional. Section 2 requires a report whenever a
policy of not enforcing Federal law is established or
implemented regardless of the reason.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 28, UNITED STATES CODE
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
* * * * * * *
PART II--DEPARTMENT OF JUSTICE
* * * * * * *
CHAPTER 31--THE ATTORNEY GENERAL
* * * * * * *
Sec. 530D. Report on enforcement of laws
(a) Report.--
(1) In general.--The Attorney General shall submit
to the Congress a report of any instance in which the
Attorney General or any officer of the Department of
Justice--
(A) or any other Federal officer
establishes or implements a formal or informal
policy to refrain--
(i) from enforcing, applying, or
administering any provision of any
Federal statute, rule, regulation,
program, policy, or other law whose
enforcement, application, or
administration is within the
responsibility of the Attorney General
or such officer [on the grounds that
such provision is unconstitutional] and
state the grounds for such policy; or
* * * * * * *
Dissenting Views
INTRODUCTION
H.R. 3973, the ``Faithful Execution of the Law Act of
2014,'' would require the Attorney General to report to
Congress any instance when any Federal officer establishes or
implements a formal or informal policy to refrain from
enforcing, applying, or administering any Federal law as well
as to state the grounds underlying such a non-enforcement
policy. It does this by expanding 28 U.S.C. Sec. 530D(a)(1)(A),
which currently only requires the Attorney General to report to
Congress any instance when the Attorney General or other
Justice Department officer establishes or implements a non-
enforcement policy on the grounds that the relevant provision
of law is unconstitutional.
The burdensome mandate that H.R. 3973 would impose on the
Attorney General will not only result in confusion and drain
already-limited law enforcement resources, but would also
present separation-of-powers concerns when applied in certain
circumstances, such as the conduct of foreign policy. H.R. 3973
would require the Attorney General to oversee all Federal
officers and would require him to determine in every instance
when they prioritize enforcement of some classes of cases over
others, whether such exercises of discretion constitute a
``policy'' of non-enforcement. It is also very troubling that
there was absolutely no deliberative process concerning this
bill as there was neither a legislative hearing nor a
Subcommittee markup of the bill.
Simply put, this bill is a thoroughly flawed solution in
search of an imaginary problem. Over the course of two House
Judiciary Committee oversight hearings on the issue of whether
President Barack Obama has failed to faithfully execute the
laws,\1\ the bill's proponents failed to identify a single
credible example of such failure. It is clear that the bill's
proponents have confused constitutional violations with the
President's legitimate exercise of enforcement discretion,
which not only is well within his authority but is, in fact,
required by the United States Constitution's command that he
``take care'' to ``faithfully'' execute the laws.
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\1\Enforcing the President's Constitutional Duty to Faithfully
Execute the Laws: Hearing Before the H. Comm. on the Judiciary, 113th
Cong. (2014) [hereinafter ``Enforcing Constitutional Duty Hearing''];
President's Constitutional Duty to Faithfully Execute the Laws: Hearing
Before the H. Comm. on the Judiciary, 113th Cong. (2013) [hereinafter
``Faithfully Execute Hearing''].
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For these reasons and others explained in greater detail
below, we must dissent from the Committee report on this bill
and urge our colleagues to oppose it.
DESCRIPTION AND BACKGROUND
DESCRIPTION
Section 1. Short Title. Section 1 sets forth the short
title of the bill as the ``Faithful Execution of the Law Act of
2014.''
Section 2. Amendment to Section 530D of Title 28, United
States Code. Section 2 amends 28 U.S.C. Sec. 530D(a)(1)(A). In
pertinent part, section 530D requires the Attorney General to
report to Congress any instance when the Attorney General or
other Justice Department officer establishes or implements a
formal or informal policy to refrain from enforcing, applying,
or administering any Federal law on the grounds that such
provision is unconstitutional.\2\ H.R. 3973 amends this
reporting requirement to require the Attorney General to make
such a report: (1) when a Justice Department official ``or any
other federal officer'' establishes or implements a non-
enforcement policy; and (2) requires that the report state the
grounds, not limited to unconstitutionality, underlying any
policy of non-enforcement.
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\2\28 U.S.C. Sec. 530D(a)(1)(A) provides:
(1) In general.--The Attorney General shall submit to the Congress a
report of any instance in which the Attorney General or any officer of
the Department of Justice--
(A) establishes or implements a formal or informal policy
to refrain-
G(i) from enforcing, applying, or administering any
provision of any Federal statute, rule, regulation,
program, policy, or other law whose enforcement,
application, or administration is within the responsibility
of the Attorney General or such officer on the grounds that
such provision is unconstitutional; or
G(ii) within any judicial jurisdiction of or within the
United States, from adhering to, enforcing, applying, or
complying with, any standing rule of decision (binding upon
courts of, or inferior to those of, that jurisdiction)
established by a final decision of any court of, or
superior to those of, that jurisdiction, respecting the
interpretation, construction, or application of the
Constitution, any statute, rule, regulation, program,
policy, or other law whose enforcement, application, or
administration is within the responsibility of the Attorney
General or such officer.
BACKGROUND
Article II, section 3 of the United States Constitution
states, among other things, that the President ``shall take
Care that the Laws be faithfully executed.''\3\ In interpreting
the ``take care'' clause, courts have employed two lines of
reasoning that superficially may seem to be in tension at first
blush. One line of decisions holds that the President is
obligated to implement and enforce statutes as written by
Congress and that the President has no authority to disregard
such statutes.\4\ A second line of decisions, however, makes
clear that, in implementing his charge to take care that the
laws be faithfully executed, the President and the executive
branch that he heads have the authority, and, indeed, the duty
not to enforce a law in some instances because he has the
discretion to determine how a law is enforced or implemented in
light of enforcement priorities and limited resources, among
many potential factors. As the Supreme Court has stated, ``an
agency's decision not to prosecute or enforce, whether through
civil or criminal process, is a decision generally committed to
an agency's absolute discretion.''\5\
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\3\U.S. Const. art. II, Sec. 3.
\4\Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952);
Kendall v. U.S., 37 U.S. (12 Pet.) 524 (1838).
\5\Heckler v. Chaney, 470 U.S. 821, 831 (1985).
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Regarding enforcement discretion, the Supreme Court has
made clear the ``take care'' clause requires the President to
exercise discretion, noting that decisions not to enforce have
``long been regarded as the special province of the Executive
Branch, inasmuch as it is the Executive who is charged by the
Constitution to `take Care that the Laws be faithfully
executed.'''\6\ As to delays in implementing statutes,
executive branch administrative agencies routinely miss
rulemaking deadlines set by Congress in statutes and no court
has thus far held that such decisions by themselves constitute
constitutional violations. Notably, no court has ever
invalidated an agency's exercise of prosecutorial or
administrative discretion on the grounds that it violated the
``take care'' clause.\7\
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\6\Id. at 832.
\7\Kate M. Manuel & Todd Garvey, Prosecutorial Discretion in
Immigration Enforcement: Legal Issues, Congressional Research Service
Report for Congress, Dec. 27, 2013, at 17 [hereinafter ``CRS
Immigration Report''] (``no court appears to have invalidated a policy
of non-enforcement founded upon prosecutorial discretion on the grounds
that the policy violated the Take Care Clause, and one Federal
appellate court has opined that real or perceived inadequate
enforcement does not constitute a reviewable abdication of duty'')
(quoting Texas v. United States, 106 F.3d 661, 667 5th Cir. (1997))
(internal marks omitted).
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CONCERNS WITH H.R. 3973
I. H.R. 3973 IS A FUNDAMENTALLY FLAWED SOLUTION TO A
NON-EXISTENT PROBLEM
An initial problem with H.R. 3973 is that it is based on
the false premise that President Obama has failed in his duty
to take care that he faithfully execute the laws. Over the
course of two House Judiciary Committee oversight hearings on
the ``take care'' clause, H.R. 3973's proponents sought to
portray certain actions of President Obama as examples of his
failure to execute the law. They cited, for example, the
President's Deferred Action for Childhood Arrivals (DACA)
program, which temporarily defers removal of certain young
adults who were brought into the country as young children.\8\
In addition, they cited several decisions by the Administration
to delay or clarify the implementation of certain provisions of
the Patient Protection and Affordable Care Act (ACA) as
examples of the President's failure to faithfully execute the
laws.\9\ Finally, they alleged that the Justice Department's
revised charging guidelines for certain non-violent, low-level
drug offenders amounted to a failure to enforce the law.\10\
The modified charging guidelines direct prosecutors to charge
certain low-level, nonviolent drug offenders with offenses that
do not trigger mandatory minimum sentences.\11\
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\8\See generally Enforcing Constitutional Duty Hearing; Faithfully
Execute Hearing.
\9\Id.
\10\See Enforcing Constitutional Duty Hearing.
\11\Attorney General Eric H. Holder, Jr., Annual Meeting of the
American Bar Association's House of Delegates, Aug. 12, 2013, http://
www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html.
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Rather than being examples of constitutional violations,
however, these examples merely illustrate the President's
exercise of enforcement discretion in light of limited
available resources, which is not only within the President's
constitutional authority, but is required by the ``take care''
clause. For instance, the decisions to delay the employer
mandates and to allow the renewal of otherwise non-ACA-
compliant health insurance plans for a temporary time period
were attempts to phase-in implementation of the ACA and were
not an attempt to prevent implementation. Moreover, the
provision of subsidies for those in Federal exchanges was
consistent with the text, history, and purpose of the ACA. It
would defy common sense to suggest that the President would act
to undermine his signature legislative accomplishment.
In response to questions regarding the Administration's
legal authority for delaying implementation, the Treasury
Department explained that this delay ``is an exercise of the
Treasury Department's longstanding administrative authority to
grant transition relief when implementing legislation like the
ACA. Administrative authority is granted by section 7805(a) of
the Internal Revenue Code.''\12\ Section 7805(a) provides that
``the Secretary [of the Treasury] shall prescribe all needful
rules and regulations for the enforcement of this title.''\13\
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\12\Letter from Mark J. Mazur, Assistant Secretary for Tax Policy,
U.S. Department of the Treasury to Chairman Fred Upton, et al., at 2
(July 9, 2013), available at http://democrats.energycommerce.house.gov/
sites/default/files/documents/Upton-Treasury-ACA-2013-7-9.pdf)
[hereinafter ``Mazur Letter''].
\13\26 U.S.C. Sec. 7805 (2014).
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As the Treasury Department further explained, ``[t]his
authority has been used to postpone the application of new
legislation on a number of prior occasions across
Administrations.''\14\ The Department provided several past
examples where it had delayed or waived a statutory
requirement, including its decision during the George W. Bush
Administration to delay implementation of standards return
preparers must follow to avoid penalties under the Small
Business Work Opportunity Act of 2007 until 2008 despite the
fact that Congress made those changes effective as of May 25,
2007.\15\
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\14\Mazur Letter at 2.
\15\Id.
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Allowing flexibility in the implementation of a new
program, even where the statute mandates a specific deadline,
is neither unusual nor a constitutional violation. Such
flexibility is integral to the President's duty to ``take
care'' that he ``faithfully'' execute laws. The exercise of
enforcement discretion is a traditional power of the executive.
As Duke University Law School Professor Christopher Schroeder
testified before the Committee, ``Discretionary choices are
unavoidable features in executing almost all laws.''\16\ He
further testified that the ``priority setting decisions
necessitated by budget constraints necessarily affect how the
laws are being executed at any point in time, not whether they
are being executed.''\17\ He also noted that such discretionary
enforcement decisions were routine and were too numerous to
count.\18\
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\16\Enforcing Constitutional Duty Hearing (statement of Christopher
H. Schroeder, Charles S. Murphy Professor of Law and Professor of
Public Policy Studies, Duke University, at 3) [hereinafter ``Schroeder
statement''].
\17\Id. at 6 (emphases in original).
\18\Id.
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With respect to the Administration's implementation of
DACA, and its immigration-related enforcement decisions more
generally, the exercise of discretion in immigration
enforcement is squarely within the President's authority. The
Supreme Court has consistently held that the exercise of such
discretion is a function of the President's powers under the
``take care'' clause and has reiterated this principle in the
immigration enforcement context as recently as 2012 in its
decision in Arizona v. United States.\19\ As both
Representative Luis Gutierrez (D-IL) and Professor Schroeder
pointed out during the second hearing on the ``take care''
clause, DACA is not a case where the President has decided
simply to not enforce the law for an entire class of
people.\20\ Although the policy applies broadly, immigration
authorities must still make particular decisions regarding
removal of an individual on a case-by-case basis to ensure that
the individual meets DACA's qualifications.
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\19\132 S. Ct. 2492 (2012). The Court relied upon the ``broad
discretion'' exercised by Federal immigration officials, including
``whether it makes sense to pursue removal at all,'' in striking down
almost all of Arizona's sweeping anti-immigrant law (SB 1070). Id. at
2499. Because Arizona's law could result in ``unnecessary harassment of
some aliens (for instance, a veteran, college student, or someone
assisting with a criminal investigation) whom Federal officials
determine should not be removed,'' the Court concluded that the law
``violates the principle that the removal process is entrusted to the
discretion of the Federal Government.'' Id. at 2506.
\20\Enforcing Constitutional Duty Hearing.
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Immigration officials may exercise enforcement discretion
in individual cases or ``prosecutorial discretion may be more
formalized and generalized through agency regulations or
procedures.''\21\ In fact, Congress expressly directed the
Secretary of Homeland Security to establish ``national
immigration enforcement policies and priorities.''\22\ The
Administration's DACA policy comports both with the statutory
directive to establish national enforcement priorities and with
the responsibility to exercise prosecutorial discretion under
the ``take care'' clause of the Constitution.
---------------------------------------------------------------------------
\21\Memorandum from Bo Cooper, General Counsel, INS, INS Exercise
of Prosecutorial Discretion, July 11, 2000, at 17-18, available at
http://iwp.legalmomentum.org/reference/additional-materials/
immigration/enforcement-detention-and-criminal-justice/government-
documents/Bo-Coope
r-memo%20pros%20discretion7.11.2000.pdf/view.
\22\6 U.S.C. Sec. 202 (2014).
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While some critics argue that DACA can be distinguished
because the possibility for relief is extended to persons who
fall within a larger category, this ignores the fact that
specific decisions to defer action still are made on a case-by-
case basis. It also overlooks the fact that the executive
branch has exercised its enforcement discretion on a
categorical basis for decades. For example, the Kennedy
Administration extended voluntary departure to persons from
Cuba on a categorical basis, which allowed many otherwise
deportable individuals to remain in the United States for an
extended period of time.\23\ President George W. Bush's
Administration temporarily suspended sanctions on employment of
unauthorized aliens in areas affected by Hurricane Katrina and
directed agents and officers to exercise prosecutorial
discretion with respect to nursing mothers.\24\
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\23\CRS Immigration Report at 1.
\24\Id.; Memorandum from Julie L. Myers, Assistant Secretary,
Immigration and Customs
Enforcement, Prosecutorial and Custodial Discretion, Nov. 7, 2007,
available at http://www.scribd.com/doc/22092973/ICE-Guidance-Memo-
Prosecutorial-Discretion-Julie-Myers-11-7-07.
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As with DACA, the revised Justice Department charging
guidelines still require particular charging decisions to be
made on a case-by-case (not class-wide) basis to ensure that a
particular offender meets the required criteria. Assessing the
particular facts of a case to the appropriate criminal charge
is a core function of prosecutorial discretion, the wide
latitude that prosecutors have in determining when, whom, how,
and even whether to prosecute apparent violations of the law.
Far from violating the ``take care'' clause, prosecutorial
discretion derives from this obligation to ``take care'' to
``faithfully'' execute the law.
Regarding the seeming tension between the duty to execute
the laws and decisions not to enforce the law, Professor
Schroeder testified:
At first blush, it may seem paradoxical to say that an
agency is executing the laws when it decides not to
enforce the law, but the paradox is completely
eliminated once one recognizes that executing laws
encompasses many activities, not all of which can be
performed at any given time. Insofar as making
decisions about where and when to enforce frees up
resources for other activities constitutive of law
execution, non-enforcement decisions are part of the
overall process of executing the laws.\25\
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\25\Enforcing Constitutional Duty Hearing (Schroeder statement at
7).
In short, the examples that the proponents of H.R. 3973
cite to justify its burdensome new reporting requirement fail
to support the underlying premise of the bill, which is that
routine exercises of enforcement discretion amount to
violations of the President's duty to take care that the laws
be faithfully executed. In the absence of any credible examples
of such a failure to meet his constitutional obligations, the
justification for the bill fails.
II. H.R. 3973 RAISES SERIOUS SEPARATION-OF-POWERS CONCERNS
H.R. 3973 may pose as-applied political question problems.
In a memorandum to House Judiciary Committee Democratic staff
analyzing H.R. 3973, Professor Laurence Tribe of Harvard Law
School noted that the practical effect of the bill would be
analogous to expanding the Administrative Procedure Act\26\ to
require the Attorney General to submit a reasoned report every
time any executive agency exercised its discretion not to
enforce a statute.\27\ Requiring the executive branch to
explain its decision not to enforce a statute, he noted, may,
in many circumstances, pose serious problems of judicial
enforcement.\28\
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\26\5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521
(2014).
\27\Memorandum from Laurence H. Tribe to Democratic Staff of the
House Judiciary Committee 2 (Mar. 3, 2014) (on file with H. Committee
on the Judiciary, Democratic Staff) [hereinafter ``Tribe memo''].
\28\Id.
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Professor Tribe used the hypothetical example of regime
change developments in Ukraine and Egypt. Section 508 of the
Foreign Assistance Act\29\ prohibits the executive branch from
spending funds to assist a country whose leader was deposed in
a coup. The State Department has yet to announce whether these
developments in Ukraine or Egypt are coups, and thus has not
yet enforced the Act. Nevertheless, the practical effect of
H.R. 3973 would be to require either the State Department to
make such an announcement or the Attorney General to issue a
section 530D report explaining why the State Department was not
enforcing the Foreign Assistance Act.\30\ Should the Attorney
General or Secretary of State remain silent, a court would
rightfully be loath to involve itself in enforcing the
reporting requirement under H.R. 3973.\31\ Indeed, under the
various factors outlined by the Supreme Court in Baker v. Carr
for determining whether an issue is a political question that
is inappropriate for judicial determination, a court would
likely determine that enforcing section 530D in the context of
foreign affairs would present a clear political question.\32\
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\29\Pub. L. No. 87-195, 75 Stat. 424-2 (1961).
\30\Tribe memo at 3.
\31\Id.
\32\Id.; Baker v. Carr, 369 U.S. 186 (1962). The Court outlined the
factors for determining when a question was political and, therefore,
not appropriate for decision by a court:
Prominent on the surface of any case held to involve a
political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable
and manageable standards for resolving it; or the
impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion;
or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already
made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on one
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question.
Id. at 217.
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To highlight this flaw in the bill, Ranking Member John
Conyers, Jr. (D-MI) offered an amendment to clarify that the
conduct of foreign affairs is outside the bill's scope. As he
explained, by applying this legislation to the State
Department, it ``would put our Nation in the untenable position
of being forced to disclose certain critical legal and policy
positions to other nations--including our enemies--when it is
not in our best interest to do so.''\33\ Unfortunately, his
amendment failed by a party-line vote of 11 to 18.
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\33\Unofficial Tr. of Markup of H.R. 3973, the ``Faithful Execution
of the Law Act of 2014,'' by the H. Comm. on the Judiciary, 113th Cong.
(Mar. 5. 2014).
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Beyond the foreign affairs context, H.R. 3973 would pose
problems. The mere requirement that the executive branch report
on whether it plans to enforce a law touches on what Justice
Scalia has called the ```common law' of judicial review of
agency action.''\34\ Courts frequently fail to discipline the
executive branch when a decision involves ``a sensitive and
inherently discretionary judgment call, . . . the sort of
decision that has traditionally been nonreviewable, . . . [and
decisions for which] review would have disruptive practical
consequences.''\35\ While this would present an as-applied as
opposed to a facial problem for H.R. 3973, it is worth noting
the possibility of future concern.
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\34\Webster v. Doe, 486 U.S. 592, 608 (1988) (Scalia, J.,
dissenting).
\35\Id. at 609 (internal quotation marks and citations omitted).
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III. IMPLEMENTATION OF H.R. 3973 WILL CAUSE CONFUSION AND DRAIN
ALREADY-LIMITED RESOURCES
H.R. 3973 poses substantial practical difficulties. The
bill expands 28 U.S.C. Sec. 530D's reporting requirement to
include any purported non-enforcement policy of any Federal
officer, but does not define the term ``federal officer.'' In
Buckley v. Valeo, the Supreme Court defined ``Officers of the
United States'' to include ``any appointee exercising
significant authority pursuant to the laws of the United
States.''\36\ Under that definition, the set of Federal
officers may number in the hundreds, if not the thousands.
Because H.R. 3973 does not define ``federal officer,'' the
statute might be read to encompass all ``Officers of the United
States'' under Article II of the Constitution. Thus, H.R. 3973
could conceivably reach routine enforcement decisions by a low-
level Federal officer. Nevertheless, H.R. 3973 would require
the Attorney General to monitor every executive branch agency
to find and report all instances in which a Federal officer
adopts a policy-formal or informal-to refrain from enforcing
any Federal statute, rule, or regulation. That task could prove
quite onerous, if not impossible.
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\36\424 U.S. 1, 126 (1976).
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In terms of what is meant under the amended statute by a
``policy'' not to enforce, to the extent that H.R. 3973's
proponents mean to limit its reporting requirement to those
instances where an executive branch official decides entirely
not to enforce a provision of law, it may be less problematic.
If, however, the bill's proponents mean to include cases like
the DACA program, which was an exercise in enforcement
discretion, then the bill would require officials to report the
reason to Congress anytime they decide not to enforce a
provision of law in a set of cases. But, as Professor
Schroeder's testimony showed, executive branch officials never
have sufficient resources to enforce the laws in each and every
case to which they would apply. If they have to report to
Congress every time they prioritize some classes of cases over
others in allocating scarce resources, their resources will be
even further stretched, and enforcement of the law will suffer.
IV. THERE WAS AN ALMOST COMPLETE ABSENCE OF GENUINE DELIBERATIVE
PROCESS
Further calling into question the soundness of H.R. 3973 is
the fact that the Committee did not thoroughly vet it. The
Committee failed to hold a single legislative hearing on this
bill and did not hold any Subcommittee markup of the bill.
Finally, this Report is being filed less than two days after
the full Committee markup of the bill--which itself was
perfunctory--and without a budgetary impact estimate from the
Congressional Budget Office. In the absence of any thorough
consideration of the bill's provisions and its potential real-
world implications, it is no surprise that the bill is vague
and perhaps broader in scope than its authors intended.
CONCLUSION
H.R. 3973 is an ill-considered and deeply flawed bill. It
is based on the false premise that President Obama has violated
his constitutional duty to ``take care'' that he ``faithfully''
execute the laws. None of the examples that the bill's
proponents rely on constitute a failure to execute the law.
Rather, they are all examples of the President's exercise of
his authority to use discretion in enforcing the law, which
stems from the very ``take care'' clause that the bill's
proponents claims he is violating. Moreover, H.R. 3973 can
present serious separation-of-powers concerns in specific
contexts whereby a court may be drafted into deciding questions
that the Constitution reserves for the political branches or
for which a court is otherwise ill-equipped to decide. Finally,
H.R. 3973 imposes an incredibly large practical burden on the
Attorney General to monitor the activities of potentially
thousands of executive branch officers and make determinations
as to whether their routine discretionary decisions amount to a
``policy'' of non-enforcement. Particularly in light of the
fact that this bill does not provide extra resources to carry
out its requirements, this burden will inevitably divert
limited resources away from the Justice Department's core law
enforcement function.
For all of the foregoing reasons, we strongly urge our
colleagues to oppose H.R. 3973.
John Conyers, Jr.
Jerrold Nadler.
Robert C. ``Bobby'' Scott.
Zoe Lofgren.
Sheila Jackson Lee.
Steve Cohen.
Henry C. ``Hank'' Johnson, Jr.
Pedro R. Pierluisi.
Judy Chu.
Ted Deutch.
Luis V. Gutierrez.
Karen Bass.
Cedric Richmond.
Hakeem Jeffries.
David N. Cicilline.