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EXECUTIVE OVERREACH IN DOMESTIC AFFAIRS (PART I)—HEALTH CARE AND IMMIGRATION HEARING BEFORE THE EXECUTIVE OVERREACH TASK FORCE OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED FOURTEENTH CONGRESS SECOND SESSION MARCH 15, 2016 Serial No. 114–63 Printed for the use of the Committee on the Judiciary ( Available via the World Wide Web: http://judiciary.house.gov U.S. GOVERNMENT PUBLISHING OFFICE 99–453 PDF WASHINGTON : 2016 For sale by the Superintendent of Documents, U.S. Government Publishing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 COMMITTEE ON THE JUDICIARY BOB GOODLATTE, Virginia, Chairman F. JAMES SENSENBRENNER, JR., JOHN CONYERS, JR., Michigan Wisconsin JERROLD NADLER, New York LAMAR S. SMITH, Texas ZOE LOFGREN, California STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas DARRELL E. ISSA, California STEVE COHEN, Tennessee J. RANDY FORBES, Virginia HENRY C. ‘‘HANK’’ JOHNSON, JR., STEVE KING, Iowa Georgia TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico LOUIE GOHMERT, Texas JUDY CHU, California JIM JORDAN, Ohio TED DEUTCH, Florida TED POE, Texas LUIS V. GUTIERREZ, Illinois JASON CHAFFETZ, Utah KAREN BASS, California TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana TREY GOWDY, South Carolina SUZAN DelBENE, Washington RAU´ L LABRADOR, Idaho HAKEEM JEFFRIES, New York BLAKE FARENTHOLD, Texas DAVID N. CICILLINE, Rhode Island DOUG COLLINS, Georgia SCOTT PETERS, California RON DeSANTIS, Florida MIMI WALTERS, California KEN BUCK, Colorado JOHN RATCLIFFE, Texas DAVE TROTT, Michigan MIKE BISHOP, Michigan SHELLEY HUSBAND, Chief of Staff & General Counsel PERRY APELBAUM, Minority Staff Director & Chief Counsel EXECUTIVE OVERREACH TASK FORCE STEVE KING, Iowa, Chairman F. JAMES SENSENBRENNER, JR., STEVE COHEN, Tennessee Wisconsin JERROLD NADLER, New York DARRELL E. ISSA, California ZOE LOFGREN, California LOUIE GOHMERT, Texas SHEILA JACKSON LEE, Texas JIM JORDAN, Ohio HENRY C. ‘‘HANK’’ JOHNSON, JR., TED POE, Texas Georgia JASON CHAFFETZ, Utah JUDY CHU, California TREY GOWDY, South Carolina TED DEUTCH, Florida RAU´ L LABRADOR, Idaho CEDRIC RICHMOND, Louisiana RON DeSANTIS, Florida SCOTT PETERS, California KEN BUCK, Colorado MIKE BISHOP, Michigan PAUL B. TAYLOR, Chief Counsel JAMES J. PARK, Minority Counsel (II) C O N T E N T S MARCH 15, 2016 Page OPENING STATEMENTS The Honorable Steve King, a Representative in Congress from the State of Iowa, and Chairman, Executive Overreach Task Force ............................... 1 The Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Executive Overreach Task Force .......... 3 The Honorable Bob Goodlatte, a Representative in Congress from the State of Virginia, and Chairman, Committee on the Judiciary ................................. 5 The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary ......... 7 WITNESSES Elizabeth P. Papez, Partner, Winston & Strawn LLP Oral Testimony ..................................................................................................... 14 Prepared Statement ............................................................................................. 17 Josh Blackman, Associate Professor of Law, South Texas College of Law, Houston Oral Testimony ..................................................................................................... 24 Prepared Statement ............................................................................................. 26 Simon Lazarus, Senior Counsel, Constitutional Accountability Center Oral Testimony ..................................................................................................... 31 Prepared Statement ............................................................................................. 33 Elizabeth H. Slattery, Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation Oral Testimony ..................................................................................................... 56 Prepared Statement ............................................................................................. 58 LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING Prepared statement of the Honorable Sheila Jackson Lee, a Representative in Congress from the State of Texas, and Member, Executive Overreach Task Force ............................................................................................................ 9 Additional material submitted by the Honorable Sheila Jackson Lee, a Rep- resentative in Congress from the State of Texas, and Member, Executive Overreach Task Force .......................................................................................... 97 OFFICIAL HEARING RECORD UNPRINTED MATERIAL SUBMITTED FOR THE HEARING RECORD Supplemental material submitted by Josh Blackman, Associate Professor of Law, South Texas College of Law, Houston. This material is available at the Sub- committee and can also be accessed at: http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=104663 Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Member, Executive Overreach Task Force. This material is available at the Subcommittee and can also be accessed at: http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=104663 (III) EXECUTIVE OVERREACH IN DOMESTIC AF- FAIRS (PART I)—HEALTH CARE AND IMMI- GRATION TUESDAY, MARCH 15, 2016 HOUSE OF REPRESENTATIVES EXECUTIVE OVERREACH TASK FORCE COMMITTEE ON THE JUDICIARY Washington, DC. The Task Force met, pursuant to call, at 10:08 a.m., in room 2141, Rayburn House Office Building, the Honorable Steve King (Chairman of the Task Force) presiding. Present: Representatives King, Goodlatte, Issa, Gohmert, Jordan, Poe, Gowdy, Labrador, DeSantis, Buck, Bishop, Cohen, Conyers, Lofgren, Jackson Lee, Johnson, Chu, and Peters. Staff Present: (Majority) Paul Taylor, Chief Counsel; Tricia White, Clerk; Zachary Somers, Parliamentarian & General Coun- sel, Committee on the Judiciary; (Minority) James J. Park, Minor- ity Counsel; Gary Merson, Counsel; and Rosalind Jackson, Profes- sional Staff Member. Mr. KING. The Executive Overreach Task Force will come to order. And without objection, the Chair is authorized to declare a recess of the Task Force at any time. I’ll recognize myself for an opening statement. At our first Task Force hearing, we explored how Congress itself, over the past many decades, has acted—or not acted—in ways that have tended to cede its legislative power to the executive branch. It’s contrary to our Founders’ original intentions as well. Our hear- ing today focuses on examples in which the President has exercised sheer will to wrest legislative authority from Congress. President Obama’s actions in planning to grant amnesty and work permits to millions of illegal immigrants, without congres- sional authorization, and in unilaterally extending statutory ObamaCare deadlines and spending unappropriated funds to pay subsidies to health insurers, are two case studies in the modern abuse of domestic executive power. While the President has defined constitutional powers in foreign and military affairs, he does not have any legislative power under the Constitution. It’s not outside his power to veto legislation pre- sented to him. (1) 2 Consequently, Presidential abuses of power in domestic affairs are particularly grave threats to the individual liberty protected by the Constitution. I’ll focus on the example of immigration in my re- marks. Beginning on March 2, 2011, the Obama administration began a series of memos that have radically transformed immigration law without a single vote from Congress. March 2 was the first of what were called the Morton memos. I recall reading the Morton memos, and I recall its discussion and hearing here with Janet Napolitano. I remember her descrip- tion of prosecutorial discretion. And I recall that they said in some of the memos on an individual basis only, but repeated something like seven times in one memo. But President Obama’s theory that prosecutorial discretion, which always previously was applicable only on a case-by-case basis, could be categorical in application. In other words, by groups. I successfully offered an appropriations amendment to block funding of the Morton memos on June 7, 2012. But not to be de- terred, the President went further, 8 days later, on June 15, 2012, with the creation of the Deferred Action for Childhood Arrivals, or known as DACA. DACA took an even more radical step for the Obama administra- tion’s destruction of the traditional understanding of prosecutorial discretion. With DACA, the President claimed prosecutorial discre- tion not only was categorically applicable, but further, there should be benefits conferred. Prosecutorial discretion was always understood to be both indi- vidualized, on a case-by-case basis, and simply a decision to not act. DACA completely changed that with an entire program created to process people for positive benefits as opposed to simply refrain- ing from action by the government. I also offered a successful amendment to strip funds from DACA and the Morton memos on June 5, 2013. In November of 2014, President Obama unilaterally and uncon- stitutionally created a program that would suspend immigration laws for potentially over 5 million people who are in this country illegally.

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