[House Hearing, 112 Congress] [From the U.S. Government Publishing Office] OBAMA ADMINISTRATION'S ABUSE OF POWER ======================================================================= HEARING BEFORE THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED TWELFTH CONGRESS SECOND SESSION __________ SEPTEMBER 12, 2012 __________ Serial No. 112-145 __________ Printed for the use of the Committee on the Judiciary Available via the World Wide Web: http://judiciary.house.gov ---------- U.S. GOVERNMENT PRINTING OFFICE 75-846 PDF WASHINGTON : 2012 For sale by the Superintendent of Documents, U.S. Government Printing 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 LAMAR SMITH, Texas, Chairman F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan Wisconsin HOWARD L. BERMAN, California HOWARD COBLE, North Carolina JERROLD NADLER, New York ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT, BOB GOODLATTE, Virginia Virginia DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina STEVE CHABOT, Ohio ZOE LOFGREN, California DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas MIKE PENCE, Indiana MAXINE WATERS, California J. RANDY FORBES, Virginia STEVE COHEN, Tennessee STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr., TRENT FRANKS, Arizona Georgia LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico JIM JORDAN, Ohio MIKE QUIGLEY, Illinois TED POE, Texas JUDY CHU, California JASON CHAFFETZ, Utah TED DEUTCH, Florida TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California TOM MARINO, Pennsylvania JARED POLIS, Colorado TREY GOWDY, South Carolina DENNIS ROSS, Florida SANDY ADAMS, Florida BEN QUAYLE, Arizona MARK AMODEI, Nevada Richard Hertling, Staff Director and Chief Counsel Perry Apelbaum, Minority Staff Director and Chief Counsel C O N T E N T S ---------- SEPTEMBER 12, 2012 Page OPENING STATEMENTS The Honorable Lamar Smith, a Representative in Congress from the State of Texas, and Chairman, Committee on the Judiciary....... 1 The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary.................................................. 3 WITNESSES The Honorable Mike Lee (R-UT), United States Senator, State of Utah Oral Testimony................................................. 5 Prepared Statement............................................. 9 Lori Windham, Senior Counsel, The Becket Fund for Religious Liberty Oral Testimony................................................. 15 Prepared Statement............................................. 16 Michael J. Gerhardt, Professor of Constitutional Law and Director, Center on Law and Government, University of North Carolina Oral Testimony................................................. 20 Prepared Statement............................................. 21 Lee A. Casey, Partner, Baker Hostetler Oral Testimony................................................. 23 Prepared Statement............................................. 25 LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING Material submitted by the Honorable Elton Gallegly, a Representative in Congress from the State of California, and Member, Committee on the Judiciary............................. 34 Material submitted by the Honorable Sheila Jackson Lee, a Representative in Congress from the State of Texas, and Member, Committee on the Judiciary..................................... 49 APPENDIX Material Submitted for the Hearing Record Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Committee on the Judiciary......................... 67 OBAMA ADMINISTRATION'S ABUSE OF POWER ---------- WEDNESDAY, SEPTEMBER 12, 2012 House of Representatives, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to call, at 10:10 a.m., in room 2141, Rayburn House Office Building, the Honorable Lamar Smith (Chairman of the Committee) presiding. Present: Representatives Smith, Coble, Gallegly, Goodlatte, Lungren, Chabot, Issa, Pence, Forbes, King, Franks, Gohmert, Jordan, Chaffetz, Griffin, Marino, Gowdy, Ross, Adams, Quayle, Amodei, Conyers, Nadler, Scott, Watt, Lofgren, Jackson Lee, Waters, Cohen, Johnson, Quigley, Chu, Deutch, and Polis. Staff Present: (Majority) Richard Hertling, Staff Director and Chief Counsel; Travis Norton, Counsel; Holt Lackey, Counsel; David Lazar, Clerk; (Minority) Perry Apelbaum, Staff Director and Chief Counsel; Danielle Brown, Counsel; and Aaron Hiller, Counsel. Mr. Smith. The hearing will come to order. Without objection, the Chair is authorized to declare recesses of the Committee at any time. We welcome everyone to this hearing. We are going to begin with opening statements by me and the Ranking Member. Then I will introduce the witnesses. Then we will proceed to questions for those witnesses. This Committee has held hearings on many of the ways in which the Obama administration has abused its power, ignored its duties, evaded responsibility and overstepped the Constitution's limits on the President. Today's hearing will look at the pattern of ignoring constitutional limits created by all these examples of abuses. The Administration has repeatedly, in my view, put its partisan agenda above the rule of law. In doing so, it has eroded the constitutional and legal foundations that have kept America prosperous and free for over 200 years. President Obama has to an unprecedented extent failed to ``take care that the laws be faithfully executed.'' Instead he, has repeatedly issued blanket waivers that exempt large classes of the population from duly enacted laws. For example, the President once acknowledged that for him to ``simply through Executive order ignore'' the immigration laws on the books ``would not conform with his appropriate role as President.'' Nonetheless, he acted contrary to his own words and decided not to enforce some immigration laws. As a result, in these times of sustained unemployment, American workers will be forced to compete with illegal immigrants who, according to the law should not be given work permits. Similarly, the Administration has issued waivers to the No Child Left Behind Act and the Welfare reform bill that are so broad that they effectively rewrite the law instead of enforcing it. Just because you don't like the law, doesn't mean you can ignore it. Many people have gone to jail for doing just that. The President ignored the Senate's constitutional role in the appointment process in order to place partisans in key positions that regulate labor and the financial markets. To do so, he took the unprecedented position that he could make a so- called ``recess'' appointment even when the Senate by its own rules, was not in recess. The Administration also has shown contempt for Congressional oversight of its activities. In order to hide documents related to the Fast and Furious scandal the President asserted a broad executive privilege that is not supported by precedent. Executive privilege cannot apply to documents that don't involve the President or his close advisers ``if there is any reason to believe government misconduct occurred.'' Operation Fast and Furious and the Administration's misleading statements to Congress about the operation are exactly the sort of misconduct that Presidents may not conceal behind a claim of privilege. By concealing the truth about Fast and Furious behind an improper claim of privilege, the President has undermined the constitutional requirement that the executive branch answer for its actions to Congress and the American people. The President has also ignored the Constitution's protections of individual rights, most notably religious freedom. By mandating that employers pay for health care products and services that many employers believe to be morally wrong, he has forced Americans to choose between violating the law or violating their religious beliefs. The Constitution does not allow the government to put Americans to such a choice. Together, these abuses by the Obama administration form a disturbing pattern. When the Constitution and laws limit the Administration's ability to impose its partisan agenda, the President ignores the Constitution and the laws. This pattern of behavior hurts our country, disrespects the Constitution and undermines our democracy. It is easy to think of disputes about the President's power as abstract questions of constitutional theory, unimportant to anyone but law professors and D.C. Insiders. But when the Administration repeatedly ignores constitutional and legal limits on the President's power, it undermines the rule of law, with very real consequences. In 2008, the United States ranked number one in the World Economic Forum's Global Competitiveness Report. In just 4 years, we have fallen to the seventh most competitive economy in the world. According to the report, a large part of America's lost competitiveness comes from the decline in faith in public institutions and the government. The Obama administration's continued abuse of authority contributes to this decline in faith in our institutions and creates uncertainty that undermines America's job creators and businesses. America has been the most prosperous and free Nation in the world in large part because of our adherence to the Constitution and the rule of law. Today's hearing examines how the Obama administration has ignored this long tradition and how we can return to it. That concludes my opening statement. And the gentleman from Michigan, the Ranking Member of the Judiciary Committee, is recognized for his. Mr. Conyers. Mr. Chairman, we have had a respectful relationship in the way that you have Chaired this Committee, but I must observe that in the title for today's hearing it is unnecessarily open ended and provocative, and I would ask you to please consider withdrawing the hearing title from the official record when we go to print. And why? Because the use of such an incendiary term without having any conclusion or hearings or evidence that lead to this conclusion ``abuse of power'' is one that should not be taken lightly. I believe it is inappropriate when no factual or legal predicate has been presented to justify this terminology and that in my judgment the tenor of this hearing by its mere title alone fails to distinguish the differences between opinion and true abuses of the public trust. And of course all Members are entitled to their political opinion, but they are not entitled, none of us, to label every disagreement with the White House as an abuse of power. I know something about this because in 1965 when I came to this body I have had enough disagreements since then with enough Presidents to recognize that not every difference that I have with them in policy preference is evidence of an abuse of Executive power. President Nixon, for example, and I disagreed on many issues, including civil rights and crime policy. Those were political disagreements. The abuses were separate. They came later. In 1973 the Senate Watergate Committee uncovered President Nixon's enemies list. I was number 13 on that list, and so I am able to speak from firsthand experience. The investigation of this Committee revealed that the Nixon administration's plans to ``use the available Federal machinery'' to attack its ``political enemies,'' including illegal wiretaps, slush funds and break-ins, all of which happened. In 1974 we learned that the President had engaged directly in attempts to obstruct the Watergate investigation. These acts, damaging to the office and in many cases criminal as well, constituted true abuse of power. Now it is accurate that as the Chairman of this Committee in the 110th Congress I called a hearing examining the Bush administration's broad claims of Executive power. But we titled that hearing Executive Power and Its Constitutional Limitations. We were not conclusionary. We did not determine what we thought was the case and started off the hearing in that sense, as I think we are erroneously doing this morning. I believe we kept the tone of that hearing academic and respectful. We did not presuppose any wrongdoing in the title that was noticed to the public, as is the case here today. And it is also true that in March of 2009 the Committee issued a report titled Reining in the Imperial Presidency. In that report totaling 478 pages, 1,736 footnotes, we used the term ``abuse'' with respect to issues like the unlawful firing, hiring and firing of Justice Department personnel, warrantless wiretapping and torture of detainees. We concluded that this conduct constituted an abuse of executive authority only after years of research and documentation. Our conclusions were backed by successful litigation and numerous Inspector General reports. And we did not release these findings 2 months prior to a presidential election. So Mr. Chairman, you may believe that the President's recess appointments are unconstitutional, but this issue will be resolved by the courts. There is little we can do or say to change the outcome of that litigation. And similarly you may believe that the Obama administration's decision to invoke executive privilege in the Fast and Furious investigation is unprecedented and abusive. This case is not as clean cut as when the Bush administration invoked the blanket privilege over all testimony and documents in the U.S. Attorney's investigation, and I would argue that the implication of privilege here is not unprecedented. But it will be up to the courts to decide whether or not it is abusive. Again, there is little more that we can add to the debate today. So in the few working days that remain in this Congress I would urge my colleagues to address some of the issues that will not have the benefit of a first hearing in this Committee let alone a second. You see we have not had a single hearing on the incredible attempts to suppress the vote through new identification requirements and limits on registration and early voting. I was here for the passage of the Voting Rights Act of 1965, and I consider these new State laws, many of them, a direct threat to our democratic process and the very fabric of our Nation. We have not yet had a hearing, a single serious discussion about real comprehensive immigration reform or what steps we can take to invest in young people brought to the United States through no fault of their own who want to pursue an education or serve in our military. We have done nothing to address the stunning rate of incarceration in the United States, seven times that of the rest of the world, 40 times that for our African American population within the United States; 2.3 million Americans behind bars is a sign of gross injustice let alone misuse of funds and surely worthy of our discussion. We have had hearings, briefings, and a contempt citation on the floor targeted at Operation Fast and Furious but we have not yet held a single hearing in the Committee to address the flood of weapons trafficking across our borders and into Mexico, not a single discussion about gun violence in this country, the scourge of which claims 33,000 lives every year, one minor every hour. And so I urge my colleagues to the best extent that we can to put aside the partisan rhetoric and return to the people's business in this hearing and in this Committee. And I thank you Chairman Smith. Mr. Smith. Thank you, Mr. Conyers. I will proceed and introduce our witnesses. And our first witness is Senator Mike Lee of Utah. Senator Lee was elected in 2010 as Utah's 16th Senator. He is a member of the Senate Judiciary Committee where he serves as Ranking Member of the Antitrust, Competition Policy and Consumer Rights subcommittee. He is also on the Energy and National Resources, Foreign Relations, and Joint Economic Committees. Before his election to the Senate, Senator Lee had an impressive legal career, both in private practice and in public service. He worked as a law clerk for Judge Dee Benson of the U.S. District Court for the District of Utah and for Justice Samuel Alito both on the U.S. Court of Appeals for the Third Circuit and the Supreme Court. Senator Lee also served as an Assistant U.S. Attorney in Salt Lake City and General Counsel to Governor Jon Huntsman of Utah. Our second witness, Lori Windham, is a Senior Counsel with the Becket Fund for Religious Liberty. Ms. Windham has represented a variety of different religious groups, including cases under the Free Exercise Clause, Establishment Clause and the Religious Freedom Restoration Act. Ms. Windham is a graduate of Abilene Christian University and Harvard Law School. Our third witness, Michael Gerhardt, is the Samuel Ashe Distinguished Professor of Constitutional Law and Director of the Center on Law and Government at the University of North Carolina. Professor Gerhardt's specialties include constitutional conflicts between Congress and the President. Professor Gerhardt has participated in the Senate confirmation hearings for five of the nine justices currently sitting on the Supreme Court. He has previously served as Dean of Case Western Law School, taught at Wake Forest and William and Mary Law Schools and been a visiting professor at Cornell and Duke Law Schools. Our final witness, Lee Casey, is a litigation partner at the law firm of Baker Hostetler. After graduating from the University of Michigan Law School, Mr. Casey clerked for the Honorable Alex Kozinski, the Chief Judge of the United States Court of Federal Claims. From 1986 to 1993, Mr. Casey served in various capacities in the Federal Government, including the Office of Legal Policy and the Office of Legal Counsel at the Department of Justice. He also worked as the Deputy Associate General Counsel at the U.S. Department of Energy. He served as a member of the United Nations Subcommittee on the Promotion and Protection of Human Rights from 2004 through 2007. Welcome to all of our witnesses today. And Senator Lee, if you will begin. TESTIMONY OF THE HONORABLE MIKE LEE (R-UT), UNITED STATES SENATOR, STATE OF UTAH Senator Lee. Chairman Smith, Ranking Member Conyers and other Members of the Committee, I thank you for the opportunity to testify before this distinguished body today on an issue that is at the heart of our Constitution's structure, the essential duty of the legislature to ensure that the executive branch does not exceed its rightful authority. Now, at the outset I want to point out I don't want to wade into a dispute between the Chairman and the Ranking Member. My purpose here today is to discuss the concerns of the founding generation, to discuss the concerns embodied in the Constitution itself. The founding generation, including the authors of the Federalist Papers, made clear that they understood based on their colonial experience with Great Britain that there was great potential for abuse in the chief executive. Consequently the Founding Fathers put together a document that put numerous checks on Executive power to make sure that this power wouldn't be used excessively or as they origin referred to it abused. Alexander Hamilton referred repeatedly in the Federalist Papers, most notably in Federalist 66 and in Federalist 77, to what he himself referred to as an abuse of power. He used that term sometimes not just as a legalistic term to describe what might have been perhaps a criminal violation of law, but also to describe an excess of power, one that might be offensive to the legislative branch. He made clear that it was not only the right but also the duty of the legislative branch to make sure that any such excesses of power were responded to appropriately by the legislative branch in order to protect the legislative branch's own prerogatives. So again, our discussion today about Executive power is a timely one. In recent decades we have witnessed the executive branch claim for itself more and more power. But this trend has arguably reached a new disturbing level under the current Administration. President Obama has treated the Constitution's separation of powers principles as if those principles were matters of convenience that may simply be ignored when they happen to get in the way. Rather than cooperating with Congress or respecting the Constitution's separation of powers he has in many instances chosen to go it alone. And in the process he has expanded the proper boundaries around Executive power boundaries that were put in place for a reason. The framers were very well versed in the dangers of excessive government power. With the abuses of King George III fresh in their minds they drafted the Constitution so as to provide each branch with the necessary means and the personal motives to resist the encroachments of the other branches of government. Among the means the Constitution affords Congress to check the President's power and ensure that he faithfully executes his responsibilities is the right to withhold consent to the President's judicial and executive branch nominations. Article II, Section 2 of the Constitution provides that the Senate must give its advice and consent to the President's appointment of such persons. Congress also has an essential oversight role with respect to the executive branch. When executive officials make mistakes or exercise poor judgment, internal procedures will sometimes but not always remedy the problem. Inherent in our Constitution's system of checks and balances is the need for Congress to have access and visibility into the executive branch's administration of our laws to help ensure the proper functioning of the Federal Government. Congress must also ensure that the executive branch does not usurp legislative power. Article I, Section 1 grants Congress all legislative powers. When an Administration agency makes broad legislative rules or when it enacts regulations that contravene Federal policy as embodied in Federal statute the executive branch violates Article I of the Constitution. I would like to briefly discuss just a few instances in which President Obama has exceeded the Constitution's boundaries. On January 4, 2012, President Obama made four controversial executive appointments even though the Senate had refused to give its consent for one of those appointments and had no opportunity to consider the others. The President asserted that these appointments were made pursuant to the Constitution's recess appointments clause, even though the appointments occurred at a time when the Senate did not consider itself in recess and even though the Constitution expressly grants the Senate and Congress generally the power for each body to set its own internal rules, including its own schedule. Even more troubling, in justifying its unconstitutional recess appointments the President relied on the Department of Justice Office of Legal Counsel memorandum which asserted that the President may unilaterally decide when the Senate is and is not in session for purposes of the recess appointments clause. President Obama's appointments were no different in kind--they were indeed different in kind than previous recess appointments made by any President of either party. It is often controversial when a recess appointment is made. But this kind of recess appointment, one made when the Senate did not consider itself in recess, is not one of those appointments. No President has ever unilaterally appointed an executive officer during an adjournment of less than 3 days as determined by the Senate's own rules. Neither to my knowledge has a President of either party ever asserted the power to determine for itself when the Senate is or is not in session. Another examine of President Obama's refusal to respect the Constitution's separation of powers occurred when he improperly asserted executive privilege in response to a legitimate congressional inquiry related to Operation Fast and Furious. Now, courts have recognized two different types of executive privilege. There is executive process privilege and the presidential communications privilege. The deliberative process privilege does not apply in this instance with respect to the Fast and Furious investigation because government misconduct here is misleading Congress in a February 2011 letter that asserted that the Administration did not allow gun walking is the basis for Congress' request for documents. And the privilege disappears altogether when there is any reason to believe government misconduct has occurred. That is according to the standards set by the U.S. Court of Appeals for the District of Columbia Circuit. With respect to the presidential communications privilege the executive branch may assert that privilege only for communications made in operational proximity to the President, communications at a level close enough to the President to be the revelatory of his deliberations or to pose a risk to his advisers. Accordingly either high-level Administration officials were involved in misleading Congress or the White Houseis improperly asserting executive privilege. President Obama again abused Executive power when earlier this year he announced that he would stop enforcing key provisions of the Immigration Nationality Act. Specifically, he issued an Executive order providing that illegal immigrants who meet certain qualifications may apply for work permits. President Obama sought to justify this abuse of Executive power by claiming that he may properly rely on the notion of prosecutorial discretion. But prosecutorial discretion is something different than what happened here. That refers to the concept that the government may or may not be able to enforce the law with respect to each and every instance of a violation of the law. What happened here isn't that. Here the President outlined entire categories of individuals who while violating the law may nonetheless receive the express blessing of the Federal Government to remain here and work in violation of our laws. One of the reasons this is disturbing is because Congress had in fact specifically considered legislation that would have had this effect. That legislation was rejected by Congress. It didn't pass. The President nonetheless decided to go it alone and to implement this policy by means of an Executive order, thus usurping the proper role of the legislative branch. As these examples demonstrate, when faced with opposition from Congress President Obama has repeatedly sought to go it alone. It is thus all the more necessary and important that Congress continue to exercise its constitutional role and to check this President's abuse of power wherever it sees that occurring. Mr. Smith. Thank you, Senator Lee. [The prepared statement of Senator Lee follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ Mr. Smith. Ms. Windham. TESTIMONY OF LORI WINDHAM, SENIOR COUNSEL, THE BECKET FUND FOR RELIGIOUS LIBERTY Ms. Windham. Mr. Chairman and distinguished Members of the Committee---- Mr. Smith. Let me make sure your mike is on. Ms. Windham. Mr. Chairman and distinguished---- Mr. Smith. It is still not working. Ms. Windham. Mr. Chairman and distinguished Members of the Committee, thank you for the invitation and the opportunity to be with you today to offer testimony on the Obama administration's abuse of power in violating Americans' religious freedom. I am here today representing the Becket Fund for Religious Liberty, where I serve as senior counsel. At the Becket Fund we protect religious freedom for all religious traditions, including Buddhists, Christians, Hindus, Muslims, Jews and others. I will summarize my remarks and ask that my full written testimony be entered into the record. Nearly a year ago, on October 5, I sat with my colleagues before the United States Supreme Court. We were there to argue that churches and synagogues have a constitutional right to choose their clergy according to religious principles and not government regulations. I was not alone in being shocked when the Obama administration's lawyers stood up to oppose us and argued that churches are no different than bowling clubs; that our First Amendment guarantee of religious freedom does not protect religious organizations. We said that this would be a clear breach of the First Amendment and a power grab by the executive branch. The Supreme Court agreed. As you know, the justices ruled in our favor unanimously. In a 9-0 decision in Hosanna-Tabor v. EEOC the Supreme Court rejected the Administration's arguments and called them extreme. But I am saddened to report that this Administration's overreach and its attempt to redefine the limits of our religious liberty did not end or begin with Hosanna-Tabor. Unfortunately, this Administration has kept us very busy. At the Becket Fund we call them as we see them and that means we are on the same side as the Department of Justice when they get it right and we oppose them when they get it wrong, and today they are getting it wrong. The ability of millions of Americans to practice their faith is now at risk. If the government can trample First Amendment freedoms then none of our fundamental rights are secure. Last summer the Administration, acting pursuant to the Affordable Care Act, issued a regulation requiring all employer health plans to provide contraceptives, sterilization and abortion causing drugs. Much has already been said before this Committee about that mandate and the constitutional problems with it. Because the mandate violates both the Religious Freedom Restoration Act, RFRA, and the Constitution the Becket Fund filed the first lawsuit in the Nation challenging the mandate on behalf of Belmont Abbey College in North Carolina. Since then at least 22 additional lawsuits have been filed. And the Becket Fund has filed five more legal challenges on behalf of Colorado Christian University, Eternal Word Television Network, Ave Maria University, Wheaton College, and just this morning Hobby Lobby, a family owned retail chain that faces nearly half a billion dollars in fines for following its faith. These religious individuals and organizations must now choose between following their faith and paying a government fine. That is a choice no American should have to make. Not only has the Administration restricted religious freedom, it used questionable tactics both to create the mandate and then to insulate it from judicial review. The Administration issued the mandate without first publishing a proposed regulation or accepting public comment as Congress requires of it under the Administrative Procedures Act. When the Administration finally did take public comments on the mandate it refused to budge. What the Administration did do in response was to attempt to delay any judicial scrutiny of its actions until after November 2012. First, the Administration created a 1-year safe harbor for some nonprofit religious organizations. Then it proposed an alleged compromise, an inadequate compromise, and used that proposal to try and keep the mandate out of court. The government has treated both its proposed new rule and its safe harbor guidelines as a moving target altering and manipulating them as needed to avoid judicial scrutiny of the mandate. Six months after the announcement the government refuses to publish a proposed rule or say when it might do so. The government has also changed the safe harbor three times in 7 months in order to avoid defending lawsuits against it. This Administration has paid lip service to the importance of religious freedom while at the same time launching an unprecedented governmental encroachment on a fundamental right. When it comes to the First Amendment the Administration should not be saying one thing and then doing another. Protecting religious freedom, as we well know at the Becket Fund, often means defending people who disagree with you. If these abuses are permitted to continue they will set a terrible precedent for even more serious restrictions on liberty. Every American should be concerned regardless of their political or religious beliefs. Mr. Smith. Thank you, Ms. Windham. [The prepared statement of Ms. Windham follows:] Prepared Statement of Lori Windham, Senior Counsel, The Becket Fund for Religious Liberty Mr. Chairman and distinguished Members of the Committee, allow me to thank you for the invitation and opportunity to be with you today to offer testimony on the Obama Administration's abuse of power in violating Americans' religious freedom. I am here today representing The Becket Fund for Religious Liberty, where I serve as Senior Counsel. At the Becket Fund, we protect religious freedom for all religious traditions, including Buddhists, Christians, Hindus, Jews, Muslims, Sikhs, and others. I will summarize my remarks and ask that my full written testimony be entered into the record. i. introduction Nearly a year ago, on October 5th, I sat with my colleagues before the United States Supreme Court as we argued that churches and synagogues have a constitutional right to choose their clergy according to religious principles, without government interference. I was not alone in my shock when the Obama Administration's lawyers opposed our position by arguing that churches are no different than bowling clubs, and that our First Amendment guarantee of religious freedom does not protect religious organizations. In fact, the position taken by the Administration was so extreme that several Justices criticized the argument from the bench, calling it ``extraordinary'' and ``amazing.'' The government stood before the Supreme Court and argued that it could control the hiring decisions of religious institutions. We said that this would be a clear breach of the First Amendment, and a power grab by the Executive Branch. The Supreme Court agreed. As you know, the Justices ruled in our favor unanimously. In a 9-0 decision, the Supreme Court rejected the Administration's arguments and its attempt to regulate how religious organizations choose their leaders, calling its position ``extreme.'' But I am saddened to report that the overreach of this Administration in redefining the limits of religious liberty in this country did not end--or even begin--there. The Becket Fund for Religious Liberty is a non-profit organization which, for the past eighteen years, has worked to defend the religious liberty rights of people of all faiths. Our work crosses political and religious lines and focuses on the constitutional and legal guarantees enshrined in our founding, guarantees that enable every American to live with the dignity they deserve. We call them as we see them, and sometimes that means we side with the government and sometimes we don't. We've been on the same side as the Department of Justice where they get it right and oppose them when they get it wrong. Unfortunately, this Administration has kept us very busy. And ``unfortunately'' is actually not strong enough a word, because the ability of millions of Americans to live according to the dictates of their consciences is now at risk. If the government can trample First Amendment freedoms, then none of our fundamental rights are secure. I would like to share a few of the cases where the Becket Fund has been fighting back against overreach by the Administration. ii. the administration's attempt to trample religious freedom in hosanna-tabor v. eeoc In the recent U.S. Supreme Court case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which I referred to at the beginning of my testimony, the Becket Fund sought to protect the Lutheran church's ability to hire and fire religion teachers according to the teachers' ability to represent the Church's religious message. The doctrine at issue--the ``ministerial exception'' doctrine--is one that has long existed in our religious freedom jurisprudence. It springs from the well-settled understanding that our Constitution protects religious groups from government interference, including and perhaps especially when it comes to matters of internal governance and religious autonomy. Another way to put it is this: If the separation of church and state means anything, it means that government officials shouldn't be in the business of picking priests and rabbis. Yet the Obama Administration in Hosanna-Tabor veered far off the path of established precedent. It argued that the First Amendment provides no special protection to religious organizations in the selection of their own clergy. This position was so drastic that Supreme Court Justices called it ``untenable,'' ``remarkable,'' and ``extreme.'' All nine Justices agreed that the Administration's position had to be rejected The Becket Fund won a unanimous victory in Hosanna-Tabor and sent a strong message to the Administration that it could not tell a church whom it should choose to teach its beliefs. But apparently the Administration did not get the message. iii. the administration's attempt to trample religious freedom under the hhs contraception mandate Last summer, the Administration, acting pursuant to the Affordable Care Act, issued a regulation requiring all employer health plans to provide contraceptives and abortion-causing drugs. That regulation, ``the Mandate,'' applies to most religious organizations that are opposed to contraception or abortion, and to many business owners who want to ensure their practices are consistent with their faith. The Administration's actions were met with public uproar, with religious groups opposed to contraception or abortion decrying the violation of their religious freedom. A. The Mandate's Lack of Protection for Religious Freedom Although the Mandate is riddled with exceptions--exceptions for certain religious organizations, exceptions made for convenience or expediency--the Administration has stubbornly refused to create an exception that would protect thousands of religious organizations and individuals who cannot follow both the Mandate and their faith. The Mandate has a very narrow religious exception. The Mandate exempts certain religious employers, but it defines ``religious employers'' so narrowly that millions of employers who are inspired by and implement their faith through their work have been left unprotected. Indeed, the exception is so narrow that even Mother Theresa would not have qualified as a ``religious employer.'' For example, the exception requires that an employer primarily employ and serve people of their own faith. This has effectively penalized those who express their faith by serving the community at large. The same religious organizations that help the government in fulfilling the essential needs of all Americans are now being forced by the Administration to choose between following their faith or facing hefty fines for non-compliance with the government's Mandate. The Mandate also applies with full force to businesses that are religiously-oriented or owned and operated by religious individuals. The government has effectively said that you forfeit your free exercise rights when you open a business. But in the only decision on the merits of the Mandate to date, a Colorado federal district judge disagreed. The government argued that businesses, even small family businesses, have no constitutional or statutory protections for religious freedom. The judge rejected this argument and issued an injunction against the Mandate. The assault on religious liberty the Mandate represents is unprecedented. Until now, federal policy has generally protected the conscience rights of religious institutions and individuals in the health care sector. Moreover, Democratic congressman Bart Stupak, when offering the critical vote that enabled the health care bill to become law, reaffirmed his belief in the President's assurances that the conscience rights of Americans would be secure. As it happened, he was completely mistaken. The government Mandate is also far broader than any state contraception mandate to date. At least 22 states have no contraception mandate at all. Of the 28 states that have some mandate, none require contraception coverage in self-insured and ERISA plans, and the vast majority exempt plans for other reasons as well. The Mandate ends those exemptions and forces organizations that were exempt from state mandates to comply with the federal Mandate. Because the Mandate violates both the Religious Freedom Restoration Act (RFRA) and the Constitution, the Becket Fund filed the first lawsuit in the nation challenging the Mandate, on behalf of Belmont Abbey College in North Carolina. Since then, the Becket Fund has filed four more lawsuits on behalf of Colorado Christian University, Eternal Word Television Network, Ave Maria University, and Wheaton College. At least twenty-three additional lawsuits, brought by a wide variety of religious organizations, are currently pending in federal courts across the country. B. The Government's Attempts to Circumvent Both the Administrative Procedure Act and Judicial Scrutiny Not only has the Administration restricted religious freedom, it has used questionable tactics to create the Mandate and insulate it from judicial review. The Administration issued the Mandate without first publishing a proposed regulation or accepting public comment, as is required by Congress under the Administrative Procedure Act. The Administration claimed the ability to subvert and radically accelerate the normal APA procedures because of the great importance of the regulation. It accepted comments on the rule only after it was put into place, and it has refused to rescind the rule or expand the narrow religious employer exemption as a result of those comments. Predictably, this example of executive overreach caused a great public outcry. Rather than revise or rescind the Mandate, the Administration has responded to the complaints of hundreds of thousands of objectors with a series of inadequate measures. First, the Administration announced that while it would not expand the religious employer exemption, it would give certain non-profit religious groups an extra year to comply with the Mandate. This so-called ``safe harbor'' meant that such religious groups would have one more year to decide whether to comply with the Mandate and violate their faith, drop health care insurance coverage for their employees altogether and incur a hefty fine, or try to offer non-compliant insurance and incur even larger fines. Second, when this did not end the public protest against the Mandate, the President announced a supposed compromise. He promised that in a rule yet to be developed, insurance companies--not the religious employers themselves--would be forced to pay for the abortion-inducing drugs, sterilization, and contraception. In March, the Administration issued an Advance Notice of Proposed Rulemaking (ANPRM), in which it suggested ``potential means of accommodating'' religious organizations subject to the Mandate. However, the administration's proposed ``accommodation'' fails in many important respects. The first problem is that it leaves out many entities that should be protected. It is limited to non-exempt, ``non-profit religious organizations.'' Although the Administration does not say how it intends to define ``religious organizations,'' it suggests that the definition should be limited to churches or tax-exempt organizations that are ``controlled by or associated with a church or a convention or association of churches.'' Under the definition (and other alternative definitions), a small business owner will not be covered by the accommodation because she is a not a non-profit. Similarly, a non- profit, non-religious organization dedicated to caring for women in crisis pregnancies will not be covered by the proposed accommodation, nor will fraternal organizations, religious colleges, or parachurch ministries, which are not ``controlled by or associated with a church or a convention or association of churches,'' be covered. An even deeper problem with the proposed ``accommodation'' is that it does not actually relieve the burden on many of the religious organizations that qualify for the accommodation. Under the proposals outlined in the ANPRM, religious organizations will still be obligated to assist in providing these drugs and services by providing their insurers with the information and authorizations necessary to provide these drugs. The ANPRM does not offer any adequate solution for self- insured organizations, who must otherwise pay for these drugs out-of- pocket. The proposals in the ANPRM for dealing with self-insured organizations range from impractical to illegal, and have been criticized by an industry group, the Self-Insurance Institute of America, on this basis. Worse yet, the government has treated both the ANPRM and its safe harbor guidelines as a moving target, altering and manipulating them as needed to avoid judicial scrutiny of the Mandate. Although the government has offered suggestions for a new regulation in the ANPRM, it has not yet published a proposed rule, and has repeatedly used the tentative nature of the ANPRM to avoid judicial review of the rule already in place. The government has argued, in some cases successfully, that courts should not review the existing Mandate because the forthcoming rule might change its impact on those challenging the Mandate. But nearly six months after the ANPRM, the government still refuses to state what that new rule is going to look like. The government's manipulation of the safe harbor guidelines has become even more transparent over time. First, the government has promised not to enforce the Mandate for a year, but it has refused to exempt religious organizations from private enforcement. That means that religious organizations may face lawsuits in the coming year from private individuals who object to their policies. Second, the government's safe harbor guidance document indicates that employers who object to some, but not all, forms of contraception are not eligible. But the Administration has since stated in court papers that those organizations are eligible for the safe harbor. Third, just last month, the government quietly revised the safe harbor to cover some additional organizations. It did this because it faced a lawsuit from Wheaton College, which was not eligible under the original safe harbor. Time and again, the government has changed the rules in order to insulate the Mandate from judicial review. But there is one rule they won't change: forcing religious organizations to pay for drugs contrary to their religious beliefs. C. The Mandate's Threat to Religious Liberty Congress has made it clear that federal laws, including the Affordable Care Act, should not compromise religious freedom. But the Administration has trampled upon that guarantee time and time again. The Administration has ignored the intentions of Congress and restricted the rights of religious individuals and organizations. In doing so, it has violated the Constitution, ignored the Congressional command of RFRA, and endangered the rights of millions of Americans seeking to work, worship, and serve others. iv. conclusion The Administration has paid lip service to the importance of religious freedom, while at the same time launching an unprecedented government encroachment on the fundamental right of religious freedom. When it comes to the First Amendment, the Administration should not be saying one thing and doing another. Protecting religious freedom often means defending the rights of people with whom you disagree. If these abuses are permitted to continue, they will create grave injustice and set a terrible precedent for even more serious restrictions on liberty in the future. Every American should be concerned, regardless of political or religious beliefs. __________ Mr. Smith. Mr. Gerhardt. TESTIMONY OF MICHAEL J. GERHARDT, PROFESSOR OF CONSTITUTIONAL LAW AND DIRECTOR, CENTER ON LAW AND GOVERNMENT, UNIVERSITY OF NORTH CAROLINA Mr. Gerhardt. Thank you, Mr. Chairman and Ranking Member Conyers and Members of the House Judiciary Committee. It is always an enormous privilege and honor for me to have the opportunity to meet with you and to speak with you and I greatly appreciate the invitation. I should tell you as a constitutional law professor nothing has greater meaning for me than the opportunity to be able to be of service to this Committee and to government in general. You have my written statement and I won't rehash it here. Instead I would just like to try to make two observations, and I would be happy to take any questions you have later. The first observation I make again is as a constitutional law professor, and I simply want to state that I take great heart in a robust system of checks and balances. I have for many years believed in the system of checks and balances and I heartily uphold and support Congress and this Committee's strong assertion of its prerogatives. I believe that this Committee has the ability and the power to exercise oversight and to strongly push the President to defend the constitutional basis for his actions. At the same time I believe that the President has the ability to strongly defend his actions and to strongly support his actions and to strongly push back against any inquiry into either the motivations or support for his actions. That is what makes for a system of checks and balances. It is the give and it is the take, it is the back and it is the forth. And in this system of checks and balances I might point out there are many different facets. One of them is today's hearing. Another one is fast approaching, and that is the presidential election. And I should just point out that on every single one of these matters that are being discussed today the President stands politically accountable before the American people in just a matter of weeks. That check is not insignificant and I think it should be something that we all might want to take into account in the course of determining the next issue I want to mention, and that is how do we determine whether or not there is an abuse of power. I don't take that lightly. I am sure none of us do. The question of whether or not a President or his Administration abuses power is about as serious a question as can ever be asked, not just in constitutional law but in law generally. I don't think you can answer that question by asking whether or not you agree with what the President did. There just simply are too many things that a President does, countless numbers of things that a President does, to allow agreement or disagreement with a particular decision as the basis for determining whether or not there is abuse of power. Also, I think you must ask a different question. Imagine for example if this were a President from your party what would you say. What would be the test if, for example, you were Republican and this were a Republican President? Would you still think there were abuses of power? Or reverse the sides. Exchange them. See where you come out. If you come out the same place that means something. If you don't come out the same place that also has meaning. I think there is other sets of questions we should ask as well. For example, I think we should ask has the President and his Administration acted in good faith. Has he and his Administration been transparent and open and deliberative in the process of making decisions about recess appointments, executive privilege and every other matter that we will discuss today. Other questions we could ask include what are the bases for the President's judgments? Do they have a basis in past practices, do they have a basis in judicial precedent, do they have a basis in a balancing of the different consequences involved in the decision? These are all questions I think that are perfectly reasonable to ask, and these are the kinds of questions I think we should be asking in determining whether or not there has been any kind of abuse of power. For myself I think it is pretty obvious that there has been no abuse of power. I believe in answering those questions that you can find that the President has been both transparent, open and deliberative and reasonable. Of course we could disagree, but that again is not the matter. For me the issue is whether or not I can have confidence in the process by which he has made those decisions and by which the Administration has made its decisions in all the areas we are talking about, and my answer today to that is yes. Thank you. Mr. Smith. Thank you, Mr. Gerhardt. [The prepared statement of Mr. Gerhardt follows:] Prepared Statement of Michael J. Gerhardt, Samuel Ashe Distinguished Professor of Law and Director of UNC Center on Law and Government, UNC--Chapel Hill I am honored by the invitation to participate in the House Judiciary Committee's hearing, ``The Obama Administration's Abuse of Power.'' It is always a great privilege to appear before this Committee, and I appreciate the opportunity to share my perspective on the important subject of your hearing. There is nothing more meaningful to a constitutional law professor than the opportunity to be of service to this institution on significant questions about the meaning and scope of the Constitution. I cannot imagine a topic of greater concern to the Congress, this nation, and its citizens than the possibility (or fact) of a president's or his administration's abuse of power. As you know, this is not a new subject for me. For more than 20 years, I have studied the impeachment process and presidential misconduct. I take the possible occurrence of official misconduct quite seriously, and I have thought long and hard--and written one book and numerous articles--on the constitutional issues arising from the misconduct of high-ranking officials, including the President. Although I have had the privilege of advising members of Congress on various issues relating to official misconduct in the past, I of course speak today only for myself and not for anyone else or my home institution, the University of North Carolina, where I have the privilege of teaching constitutional law and professional responsibility. Given that I did not receive your invitation until Tuesday morning and my uncertainty over the particular matters you will be reviewing at this hearing, I thought the best way I could help you is to share with the Committee the two, fundamental principles that guide my thinking about the possibility of this President's or this administration's possible abuses of power. I know we agree about these principles, but I thought it might still be useful to make them explicit beforehand. The first guiding principle is recognizing and abiding by the all- important distinction between politics and the Constitution. I say ``all-important'' because it is so easy to forget and confuse political with constitutional choices. Yet, they are distinct, even though they frequently overlap. For years, many scholars rightfully criticized the Supreme Court for sometimes confusing political decisions with constitutional law; they argued, persuasively I thought, that the Court should not strike down a political decision with which it disagreed but only those things that violated the Constitution. A similar principle applies to presidents, or, for that matter, members of this august institution: The fact that we disapprove of something does not make it unconstitutional. Not every action with which we might disagree, or with which we might disapprove, is unconstitutional. Most of what a president does involves political choices; it involves making choices about policy. I do not come before you to discuss politics or policy, and I have nothing to say about the President's political choices, nor any of yours, except to say that the Constitution allows for national political leaders to make a wide range of political, even partisan, decisions. As we consider the possible abuses of power that the President, or people under his direction, may have made, we cannot ignore the timing of today's hearing. Charging any president or administration with abuse of power is serious business, and the timing of today's hearing, with a presidential election just weeks away, may lead many people to wonder why now. Some people may even believe that there are political incentives, or motivations, for conducting such an inquiry at a time like this. My reverence for this institution precludes me from agreeing with this criticism. But, at the same time, my reverence for this institution leads me to suggest, with all due respect, that you take the time to explain your timing, you maintain your focus on the Constitution, and you do what you can to ensure the hearings do not deviate from a legitimate constitutional inquiry into political theater. Once we focus on the Constitution, at least one thing should become glaringly clear: Presidents, like members of Congress, make constitutional choices all the time, and many people within their administrations are of course charged with implementing or assisting them in making those choices. The fact that a president's constitutional choices have political ramifications does not make them political or purely partisan acts. Nor should those ramifications be confused with the arguments that support, or oppose, the constitutional judgments in question. Moreover, the fact that a president makes a constitutional choice different than the one that you or I would have preferred does not make it unconstitutional. An important consideration for me is not whether I agree with a president's constitutional choices but rather whether I think they have been made in good faith. To assess whether they have been made in good faith, we can examine the President's transparency and candor in making constitutional judgments. I believe that this President, like most presidents, has made his constitutional reasoning quite openly and deliberately, and on that basis, at least, I cannot take issue with how he has handled his constitutional responsibilities. If you disagree that a demonstration of good faith in making constitutional judgments is not enough, inconsequential, or perhaps irrelevant, I can suggest another, possibly more effective test: Consider whether you would think what the President did was unconstitutional if he were a member of your party. Thus, I think we can all agree that Richard Nixon's ordering the IRS and FBI to investigate his political enemies was an abuse of power. It was not an abuse of power because he was a Republican. It does not matter whether he was a Republican. It should not matter that President Obama is a Democrat or running for reelection. What should matter, in my judgment, is whether Democrats or Republicans on the Committee would make the same charges, or raise the same defenses, regardless of the President's party. You may use this same test for any of the officials whose legal or constitutional judgments you may question. I know many members of this Committee may not, for instance, agree with the President's, the Attorney General's, and the Office of Legal Counsel's judgment that executive privilege may be extended to cover documents that were produced in internal deliberations within the executive branch. Would you reach the same conclusion and hold the same kind of hearing if the President, the Attorney General, and the Office of Legal Counsel had different political affiliations? The judgment about whether executive privilege applies is, at bottom, a constitutional choice, albeit one that obviously has political ramifications. I think there is credible support for the President's and administration's judgment on executive privilege, including historical and judicial precedents, and this credible support would exist, regardless of the President's party or the political affiliation of the people who lead his Justice Department. The second principle I follow is affirming the Constitution's establishment of a robust system of checks and balances. I believe that the Constitution vests Congress with substantial responsibilities, including oversight. In virtually all of my publications and prior testimony before Congress, I have expressed this belief, indeed, this conviction. You certainly have the power and opportunity to second- guess the President's constitutional choices, and of course you may subject him or other department heads to rigorous oversight. You may urge close scrutiny of the constitutional and legal judgments of these officials and question them. At the same time, the President undoubtedly has the authority by virtue of the Constitution, and I believe the prerogative, to push back, to defend himself, to explain his constitutional reasoning and of course to stand his ground. For example, many of you may argue that Congress and Congress alone has the authority to determine when a recess occurs, including how long it may last. At the same time, the President may argue that he is not bound by this judgment, just as President Andrew Jackson argued that he was not bound by the Supreme Court's decision in McCulloch v. Maryland because he was entitled, by virtue of his oath, his election, and his stature within the constitutional scheme, to make his own, unilateral judgments about the Constitution's meaning and scope. President Obama is entitled, in my opinion, like Jackson, Lincoln, and every other president, to make independent constitutional judgments, just as each of you is entitled to push him hard to defend or explain those judgments. As a constitutional law professor, I appreciate the robust system of checks and balances the founders gave us in the Constitution. Today's hearing is plainly an exercise in checks and balances in practice. Of course, this system does not always require, or entail, conflict, but conflict is inevitably a dynamic within it. Another, critical feature of this system is the accountability of the officials who serve in our government: High-ranking executive officials serve at the pleasure of the President and are subject to congressional oversight and subject to the impeachment process, and national political leaders are all electorally accountable. The same check applies to congressional and presidential overreaching--the fact that members of Congress and the President require the public's approval in order to continue in office. Ours is of course a government of laws not men (or women), which means that everyone who serves in government should abide by the law and is subject to the accountability that the law--the Constitution--provides. Whatever you may think of the President's constitutional choices, he now stands politically accountable for all of them before the American people. This is true for recess appointments and every other matter we may discuss at today's hearing. For, as you well know, it is not just constitutional law professors, members of Congress, or presidents who get to interpret the Constitution and debate its meaning; the American people get to do that as well. Indeed, I think that is a major reason we are here today--to educate the public. I expect that the Constitution will be discussed a good deal over the next several weeks. I look forward to that discussion and to what it will teach us about the Constitution and the President's constitutional record. __________ Mr. Smith. Mr. Casey. TESTIMONY OF LEE A. CASEY, PARTNER, BAKER HOSTETLER Mr. Casey. Thank you, Mr. Chairman and Members of the Committee. It is an honor to appear here today to discuss the question of the abuse of presidential power. I should at the outset note that I am speaking here on behalf of myself. Strong Executive power is very much part of the Constitution's design. However, the framers also established a separation of powers between the President, Congress and the courts. Although they anticipated conflicts between the branches, they also expected a basic level of respect by each branch for the other's legitimate authority. Unfortunately, the Obama administration has broken with this tradition, most especially in its disregard for the legitimate authority of Congress. The most troubling instances of unconstitutional behavior involve the Administration ignoring clear statutory requirements by claiming to exercise prosecutorial or enforcement discretion, particularly in limiting enforcement of the immigration laws for certain classes of individuals. The President must take care that the laws be faithfully executed. He has no power either to dispense with statutory requirements in individual cases or to suspend the particular law's operation. A legitimate exercise of prosecutorial discretion ordinarily involves a determination whether a particular individual or entity should be subject to an enforcement action for past conduct. In this instance the Administration has eschewed enforcement actions against whole categories of persons whose violations are continuing. In addition, legitimate prosecutorial discretion involves resource allocation rather than direct challenges to Congress' basic policy judgments as the Administration did in providing young undocumented aliens much of the relief it championed as part of the DREAM Act. The President must enforce the law as adopted by Congress and must respect its policy choices until changed through legislative action. The Administration also ignored constitutional limits on presidential appointments when the President made recess appointments to the Consumer Financial Protection Board and the National Labor Relations Board earlier this year. Recess appointments are a narrow exception to the general rule requiring Senate confirmation for high-level Federal officials. Presidents have increasingly used this power to install favored nominees in the face of Senate opposition. The Senate moved to check this practice in 2007, choosing often to remain in session on a pro forma basis during congressional adjournments. The Administration argues that the Senate is not available to receive an act on nominations during such sessions, but that body has in fact conducted business, including passing legislation, when it is convened pro forma. The Senate, not the President, is the constitutional judge of what business can or will be transacted during its sessions however brief. The Senate's reliance on pro forma sessions to prevent recess appointments may be frustrating to the President, as it surely was to his predecessor, but he cannot arrogate to himself the power to judge the adequacy of the Senate's rules. The Administration has also acted to frustrate legitimate congressional oversight of the ill-conceived Operation Fast and Furious. The President asserted executive privilege with respect to materials sought by Congress as part of its legitimate oversight functions, materials which the House Oversight Committee believes may have involved deliberate misrepresentations to Congress. But executive privilege is manifestly unavailable here. Because the President and his immediate advisors deny any involvement the constitutionally grounded presidential communications privilege does not apply. The common-law deliberative process privilege also does not apply where, as here, there is any reason to believe that government misconduct has occurred. The Administration's assertion of the privilege cannot be legally justified and again reveals a determination to ignore or evade lawful limits on Executive power. Overall the Obama administration has disregarded some of the most basic constitutional limitations on presidential power in order to achieve its policy goals or to avoid congressional scrutiny. Whether this is a deliberate effort to undercut the role of Congress or simply impatience with political opposition and legal constraint the result is the same; a direct and sustained assault on the balance of power so carefully constructed by the Constitution's framers. Thank you. Mr. Smith. Thank you Mr. Casey. [The prepared statement of Mr. Casey follows:] Prepared Statement of Lee A. Casey, Partner, Baker Hostetler Thank you Mr. Chairman and Members of the Committee. It is an honor to appear here today to discuss the very important issue of the Obama Administration's abuse of presidential power. I should note at the outset that I am speaking here on my own behalf. I am a strong advocate of vigorous executive power, which I believe was very much a part of the Framer's design for our Constitution. Indeed, an examination of the records of the Constitutional Convention makes clear that few questioned the need for a strong executive at the heart of the new national government. Most of the discussion was directed at what form that executive would take, what specific powers it would enjoy, and how best to ensure that--once established--the executive did not overstep the bounds of its proper authority. The system the Framers ultimately adopted was one of separation of powers, dividing power first between the federal government and the States, and then among the executive, legislative & judicial branches of government. Each of these branches was vested with different powers and responsibilities and there is little doubt that the Framers anticipated conflicts between the branches regarding the proper scope of their respective authority and overall role in our system of government. Indeed, it is in that very conflict that they saw the most important guarantee of constitutional government and liberty. Nevertheless, for all of the potential rivalries built into the system, the Framers assumed a fundamental level of respect between and among the three branches of government, and an appropriate deference to the claims of each when operating at the core of their constitutional role. And, by and large, this has been our national experience. Congress and the Courts over time have deferred to the Executive Branch in the formulation and execution of foreign policy, the President and Courts defer to Congress in fiscal matters, and Congress and the President defer to the Courts on questions of law. Unfortunately, the Obama Administration has broken with this tradition in several critical ways, most especially in its disregard for the legitimate authority of Congress. In particular, focusing on what I believe to be the most egregious examples, the Administration has worked to undermine statutory requirements duly enacted by Congress as the national legislature, it has ignored the limits on the President's power to fill federal offices by recess appointment, and it has worked to frustrated legitimate congressional oversight of its activities. The Administration has done all of this in a manner that goes beyond the normal cut and thrust of partisanship and politics, evincing a marked impatience and even disdain for the Constitution's limits on presidential power. 1. suspension of statutory requirements By far the most troubling of the Administration's instances of unconstitutional behavior involve ignoring clear statutory requirements as a matter of supposed executive enforcement discretion. First among these was its determination, in June 17, 2011, effectively to limit enforcement of the immigration laws to undocumented aliens who have committed other, criminal violations, followed more recently by the Administration's grant of enforcement immunity to undocumented young people who entered the United States as children. The Constitution specifically requires that the President ``shall take Care that the Laws be faithfully executed.'' U.S. Const. Art. II, Sec. 3. This language was not surplusage. It represents one of the most important constitutional limits on the executive power--the President must enforce the laws enacted by Congress--and it is there for a very good reason. Two generations before our revolution, the British Crown claimed the legal right to suspend enforcement of duly enacted statutes. This was accomplished either through individually granted dispensations or simply by suspending the law's operation across the board. This dispensing/suspending power was claimed to be part of the king's inherent ``prerogative,'' invested in the monarch as a necessary attribute of executive power. These claims, were among the factors which ultimately led to the ouster of King James II in the ``Glorious'' Revolution of 1688. Parliament, in other words, refused to be reduced to the level of a mere debating society, unable to enact laws the king was required to respect and enforce. One hundred years later, the Constitution's Framers--with this history very much in mind--made plain that no American president could claim similar power, permitting nullification of the laws by simple executive fiat. Such authority would, of course, cripple the very separation of powers they hoped to achieve. As the Supreme Court noted in an early case, where a presidential suspending power was suggested (although not, significantly, by the incumbent President Martin Van Buren): This is a doctrine that cannot receive the sanction of this court. It would be vesting in the President a dispensing power, which has no countenance for its support in any part of the constitution; and is asserting a principle, which, if carried out in its results, to all cases falling within it, would be clothing the President with a power entirely to control the legislation of congress, and paralyze the administration of justice. To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible. Kendall v. United States, 37 U.S. 524, (1838). Of course, it has long been recognized that the President and his delegees may exercise a certain level of discretion in determining how best to carry out his constitutional duty to enforce the laws, and especially to establish his administration's enforcement priorities. The courts have recognized this ``prosecutorial discretion'' as legitimate, see, e.g., Nader v. Saxbe, 497 F.2d 676, 679 n.18, n.19, and it is therefore hardly surprising that the Obama Administration has characterized its most flagrant acts of suspension/dispensation merely as exercises of such discretion. See Memorandum from Janet Napolitano, Secretary of Homeland Security, June 15, 2012, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children; Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement, June 17, 2011, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens. There are, however, fundamental differences between the simple exercise of prosecutorial discretion and the Administration's actions here. First and foremost, a legitimate exercise of prosecutorial or enforcement discretion ordinarily involves a determination whether a particular individual or entity should be the subject of an enforcement action for past conduct. In this instance, the Administration has not merely concluded that prosecutions should be eschewed for existing offenses, but that no enforcement action will be taken for continuing and future ones. In other words, the beneficiaries of this determination (defined on a categorical rather than individual basis) are assured of immunity from legal consequences even though their violations continue. This is not simple prosecutorial discretion, but suspension of the law's operation with respect to this group. Second, a legitimate exercise of prosecutorial discretion is about priorities and resource allocation; it does not challenge and ignore the basic policy judgments Congress' made in enacting the law at issue. That, however, is precisely what the Administration did when it announced that young undocumented aliens should not be the subject of deportation proceedings. As Secretary Napolitano states unequivocally in her June 15, 2012, memorandum, Our Nation's immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here. In fact, rightly or wrongly, the immigration laws make no such distinctions. Indeed, it is because current law does not provide relief for youthful undocumented aliens that the Administration championed the Development, Relief, and Education for Alien Minors Act of 2011 or ``Dream Act'' which would, if enacted, grant this relief ``notwithstanding any other provision of law,'' i.e., the preexisting requirements of the Immigration and Nationality Act. The President must enforce the law as adopted by Congress, and he must respect the policy choices Congress has made. He cannot, true to his office and oath, work to undermine or nullify the law simply because he disagrees with those choices, and or seek to substitute his own policy preferences and goals through administrative means. Such changes must be sought and obtained from Congress. Granting assurances to categories of individuals that otherwise applicable law will not be applied to them is an ``entirely inadmissible'' act of suspension.\1\ --------------------------------------------------------------------------- \1\ The Administration, it must be noted, has taken similarly impermissible actions with regard to other statutory schemes, including work/training requirements in the 1996 welfare-reform law and strict student testing and monitoring requirements in the 2001 ``No Child Left Behind'' law. Although certain aspects of the Personal Responsibility and Work Opportunity Act are subject to waiver, the federal work requirements are not among them. Similarly, the ``No Child Left Behind'' provides no authority for waivers from the relevant requirements--which, of course, were at the very heart of the law. --------------------------------------------------------------------------- 2. ``recess'' appointments to federal office The Constitution's requirement that the President appoint high level federal officers ``by and with the Advice and Consent of the Senate'' is another fundamental check on executive power ignored by the Obama Administration when, at the beginning of this year, the President made ``recess'' appointments to the Consumer Financial Protection Bureau and National Labor Relations Board. The Framers adopted this critical requirement to ensure the quality of federal appointees and to defeat any drift towards presidential cronyism. As Alexander Hamilton wrote in The Federalist: It will be readily comprehended, that a man, who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body. The Federalist No. 76 (A. Hamilton) 513 (Jacob E. Cooke ed., 1961). The right to consider and approve or reject presidential nominees to the very highest offices has, of course, traditionally been one of the Senate's most jealously guarded authorities. The Constitution does, of course, make one exception to this general rule. The Framers did not expect that Congress would remain in session for most of the year, and anticipated long periods of time (counted in weeks and months) when the Senate would be unavailable to play its advice and consent role in federal appointments. Their solution was to permit the President to make temporary, ``recess'' appointments: ``The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.'' U.S. Const. Art. II, Sec. 2, cl. 3. Successive presidents have made full use of this power, and such appointees have included agency heads, ambassadors, and even Supreme Court justices. Recess appointees may serve until the end of the Senate's next session and can, of course, serve longer if reappointed after the Senate has given its consent upon their nomination. Justice William Brennan, for example, was originally recess appointed by President Eisenhower in 1956, and was then reappointed after the Senate acted favorably on his nomination the next year. More recently, presidents have used the recess appointment power to install in office favored nominees even in the face of significant Senate opposition. The Constitution does not, of course, define ``recess'' for purposes of the President's recess appointment power, but the Department of Justice's Office of Legal Counsel has advised successive presidents that recess appointments are permissible in both intersessional and intrasessional adjournments, so long as these are of ``substantial length.'' See Recess Appointments, 13 Op. O.L.C. 325 (1989). In that case, the recess in question was 33 days, but recess appointments have been made during recesses of far shorter duration. Nevertheless, in view of the purpose of this exception to the general rule, a senatorial absence of more than a few days has been considered the minimum necessary requirement to a legitimate recess appointment. See e.g., 33 Op. Att'y Gen. at 25 (suggesting that a 5 or 10 day adjournment is insufficient for a recess); The Pocket Veto: Historical Practice and Judicial Precedent, 6 Op. O.L.C. 134, 149 (1982) (advising President to avoid making recess appointments ``when the break in continuity of the Senate is very brief.'') See also Memorandum for Alberto R. Gonzales, Counsel to the President, from Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, Re: Recess Appointments in the Current Recess of the Senate at 3 (Feb. 20, 2004) (cited in Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions at 9 n.13 (Jan. 6, 2012) (noting argument that a minimum of 3 days is necessary in view of the requirements in Art. I, Sec. 5, cl. 4 that neither house can adjourn for more than three days without the other's consent)) [hereinafter Opinion of January 6, 2012]. And, of course, the Senate must actually be in recess. As the number of recess appointments has grown, so has the Senate's determination to check the practice. Beginning in 2007, that body has chosen often to remain ``in session'' on a pro forma basis during congressional recesses so as to prevent controversial nominees from being recess appointed. Whether such pro forma sessions are inherently sufficient to defeat a presidential recess appointment can be honestly debated. The practical test, as outlined in OLC's 1989 Recess Appointments opinion, is ``whether the adjournment of the Senate is of such duration that the Senate could `not receive communications from the President or participate as a body in making appointments.''' 13 Op. O.L.C. 325. In justifying President Obama's January 4, 2012, recess appointments to the CFPB and NLRB, OLC argued that the Senate was not ``available to receive and act on nominations'' during a pro forma session, and that such sessions could not therefore prevent recess appointments. Opinion of January 6, 2012, supra, at 1. Unfortunately, the office gave short shrift to the most fundamental objection to its conclusions: that it is the Senate, and not the President, which is constitutionally empowered to determine how it will operate and what business can or will be transacted during its sessions, however brief. See U.S. Const. Art. I, Sec. 5, cl. 2 (``Each House may determine the Rules of its Proceedings.'').\2\ --------------------------------------------------------------------------- \2\ As other commentators have correctly noted, the precedents cited to the contrary in OLC's Opinion of January 6, 2012, supra, at 1, involved the question of individual rights and are inapposite. See Todd Gaziano, ``Whitewash on Illegal Appointments Won't Work'' (Jan. 12, 2012), available at, http://blog.heritage.org/2012/01/12/whitewash-on- illegal-appointments-wont-work/. --------------------------------------------------------------------------- And, in fact, at the time the January 4 appointments were made, the Senate was capable of transacting business in accordance with its own rules and past practice, including acting on legislation.\3\ There is no doubt that the Senate's adoption of pro forma sessions as a means of preventing recess appointments is frustrating to the President, as it surely was to his predecessor. President Bush, however, accepted the ultimate authority of the Senate to govern its own proceedings, and did not purport to exercise his recess appointment power when the Senate was in pro forma session. President Obama's approach necessarily arrogates to himself the ultimate authority to determine the adequacy of the Senate's rules and how nominations are handled. The Constitution simply does not give the President such power. --------------------------------------------------------------------------- \3\ As OLC's Opinion of January 6, 2012, itself acknowledges, the Senate had in fact passed legislation (a politically important payroll tax cut extension) during a pro forma session. Opinion of January 6, 2012, supra, at 21. --------------------------------------------------------------------------- 3. frustration of legitimate congressional oversight Earlier this year the Administration's refusal to provide documents to the House Committee on Oversight and Government Reform led to an unprecedented contempt citation by the House of Representatives against Attorney General Eric Holder. The issue involved, of course, was Committee demands for documents relative to the astonishingly ill- conceived ``Operation Fast and Furious,'' through which thousands of firearms were smuggled into Mexico at the behest of U.S. government agencies and officials as part of an anti-drug cartel initiative. Of perhaps 140,000 responsive documents, the Justice Department has produced about 7,600 pages, many with heavy redactions. Last June, the President asserted Executive Privilege with respect to those materials directly bearing on the Justice Department's handling of the fallout from Operation Fast and Furious, which the Committee believes may have involved deliberate misrepresentations to Congress. Executive privilege, of course, is not specifically provided for in the Constitution's text, but since Washington's administration has been inferred based upon the Executive Branch's status as a separate and co- equal branch of government and the President's authority to supervise and direct the Executive Branch. It has been fully recognized by the courts. See e.g., In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997). That said, executive privilege is not absolute--as President Nixon found to his great cost. See United States v. Nixon, 418 U.S. 683 (1974) (need for information for a criminal trial sufficient to overcome President's assertion of executive privilege with regard to White House tapes.) In the context of determining how powerful any particular assertion of privilege may be, the courts have distinguished between two components of executive privilege. The first and strongest type of executive privilege, grounded entirely in the Constitution's separation of powers, is the ``presidential communications privilege.'' This covers communications from and to the President and extends to his immediate advisors. See e.g., Judicial Watch v. Department of Justice, 365 F.3d 1108, 1114-1116 (D.C. Cir. 2004). A very strong showing of need, as where documents may be necessary to a criminal trial (not simply an investigation) as in Nixon, must be made to overcome the presidential communications privilege. See In re Sealed Case, 121 F.3d at 744-45. In this instance, of course, ``the White House has steadfastly maintained that it has not had any role in advising the Department with respect to the congressional investigation.'' Letter from the Hon. Darrell Issa to the President, June 25, 2012, at pp. 1-2, available at, http://images.politico.com/global/2012/06/issaobamaltr.pdf. As a result, it would not be appropriate for the Administration to assert the strictly constitutionally-based presidential communications privilege. The second type of executive privilege is the ``deliberative process privilege.'' This privilege is far broader than the presidential communications privilege, and generally protects materials reflecting federal agency deliberative or policymaking processes. According to the D.C. Circuit, the deliberative process privilege ``originated as a common law privilege,'' and only certain ``aspects of [that] privilege, for example the protection accorded the mental processes of agency officials . . . have roots in the constitutional separation of powers.'' Id. at 737 & n. 4. See also Letter Opinion to the Counsel to the President, Assertion of Constitutionally Based Privilege Over Reagan Administration Records, 2004 OLC LEXIS 24, 28 Op. O.L.C. 1 (Jan. 12, 2004) (referencing ``government-wide deliberative process component of the President's constitutionally based privileged.''). It is ``[t]he most frequent form of executive privilege raised in the judicial arena.'' In re Sealed Case, 121 F.3d at 737.\4\ --------------------------------------------------------------------------- \4\ This is because Congress has itself recognized the ``deliberative process privilege'' in section 5 of the Freedom of Information Act. See 5 U.S.C. Sec. 552(b)(5). --------------------------------------------------------------------------- Although reaching a much broader range of materials, the deliberative process privilege also is far weaker than the presidential communications privilege. This is because the relevant communications do not involve the President directly, and often are very far removed indeed from his own deliberative and decision making processes. The separation-of-powers concerns are, therefore, far less evident. As a result, of course, the showing of need necessary to overcome this species of executive privilege is much less demanding and, as noted by the United States Court of Appeals for the District of Columbia Circuit in a leading case, ``the privilege disappears altogether when there is any reason to believe government misconduct occurred.'' In re Sealed Case, 121 F.3d at 746. This, of course, is the case with regard to Operation Fast and Furious and the Justice Department's initial statements to Congress about that embarrassing and tragic fiasco. Moreover, when the need for executive branch secrecy regarding the formulation, execution, and closure of this program is weighed against Congress' legitimate oversight needs, the balance to be struck is clearly in Congress' favor. As a result, the Administration's assertion of the privilege here cannot be legally justified and again reveals a determination to ignore or evade the lawful limits on executive authority. Overall, the Obama Administration has disregarded some of the most basic constitutional limitations on presidential power, ignoring those limits in order to achieve its desired policy outcomes, or to avoid scrutiny of its programs and operations. Whether this grows out of a determined effort to undercut the role of Congress in our constitutional system, or from a simple impatience with political opposition and legal constraints, the result is the same--a direct and sustained assault on the balance of powers so carefully constructed by the Constitution's Framers. Thank you, and I would be pleased to answer the Committee's questions. __________ Mr. Smith. Senator Lee, thank you for staying for questions. I very much appreciate your testimony and let me direct my first question to you. What is fundamentally wrong with the President himself alone deciding when the Senate is out of session? Senator Lee. First and foremost, the Constitution itself gives each House of Congress the prerogative of determining its own schedule, subject to certain general parameters outlined in the Constitution, and just as importantly giving each body the power to establish its own rules. And so its own rules often determine its own schedule and determine when it is and is not in session. So when you take that, and you take the fact that the Constitution requires Senate confirmation of executive branch nominees and judicial nominees, you can destroy that power or at least seriously undermine it if you allow the President to conclude based on his own judgment that the Senate while it considers itself not to be in recess in fact is in recess perhaps because the President doesn't think enough is happening. At that point as soon as the President has that power the President can in many, many circumstances just circumvent the confirmation prerogative of the Senate, the advice and consent function of the Senate. That is dangerous. Mr. Smith. Thank you, Senator Lee. Mr. Casey, when the Administration unilaterally decides to either ignore immigration, welfare or education laws what is the impact of that on our democracy? Mr. Casey. Well, Mr. Chairman, I think among all of the issues we are talking about that one is the most critical because refusing, failing to carry out the law as Congress has passed it undercuts Congress' role in our constitutional system. It seizes for the executive a kind of legislative power which our framers would have been astonished and appalled to see any President attempt to exercise. Mr. Smith. Thank you, Mr. Casey. And Ms. Windham, what impact does the contraceptives and abortion inducing drugs mandate that is in the new health care bill have on religious and Catholic employers? Ms. Windham. It has a tremendous impact on religious employers, Catholic employers and employers of other denominations and faiths as well. If you refuse, if an employer cannot in good conscience provide these drugs and services they are facing fines of $1,000 per employee per year and also $100 per employee per day. These can easily run into the hundreds of thousands and even millions of dollars. So for an organization like Colorado Christian University, which is an evangelical university in Colorado, they are looking at $500,000 a year. If they choose to have policies that follow their faith they are looking at hundreds of thousands of dollars, a crushing amount, for simply asking for the right to practice what they preach. Mr. Smith. Thank you, Ms. Windham. That concludes my questions, and the gentleman from Michigan Mr. Conyers is recognized for his questions. Mr. Conyers. Thank you, Chairman Smith. Let me turn to Professor Michael Gerhardt and track the last question that was raised by our distinguished Chairman. Does the Health and Human Services rule violate the exercise of free speech when 28 States for years have already required that contraceptives be covered similar to prescription drugs? Could you pick up on that discussion between the previous witness and yourself? Mr. Gerhardt. Yes, sir. Obviously I don't perceive there to be a constitutional or legal violation here. But let me if I might just go back to a focus on process. I don't think on that issue or any of the other issues we have been talking about the President of the United States or his Administration are standing alone. It is not as if they are out there unsupported and unjustified in taking positions on any of the issues we just talked about. On the one you have just mentioned there are other Members of Congress, there are other scholars, others that view that the Administration, for that matter the State policies you just pointed out, take a position of neutrality on the issue of contraceptives as one of the things to provide as part of medical services. And the Administration's position on this I think has been evolving, which suggests that in fact they are trying to reach some sort of accommodation that may or may not make everybody happy. But that seems to me to be part of the process. And I think at the same time a lot of what is going on here is the result of institutions having taken Federal money, and Federal money comes with conditions attached, and that is one of the consequences of taking the money. Mr. Conyers. Well, you have done what I was going to next ask, which is to try to review any of the assertions made by your fellow witnesses that we want to kind of get in the record and get cleared up. I think that as a constitutional scholar who has been before the Judiciary Committee not many times but at least some times that you could be very helpful to all of us in that regard. Mr. Gerhardt. Well, thank you. I just might add though that it is not my point to suggest that I think there is an obvious single correct answer here. I think this is largely about whether or not we have confidence in the process, confidence in whether or not these issues are being approached in good faith and handled competently and credibly and that there is credible constitutional support and legal support for the positions of the Administration. That is my point. My point isn't to suggest that any of the issues being raised here are being raised inappropriately or in bad faith, but simply that I think the Administration's approach does not constitute any abuse of power. Mr. Conyers. Now, in your testimony you distinguished between political choices and constitutional choices. Now, to your knowledge has anyone determined as a matter of law that the Obama administration has acted unconstitutionally on any of the matters that we have discussed today, invoking executive privilege in Fast and Furious, making recess appointments, exercising prosecutorial discretion and enforcing immigration laws? Mr. Gerhardt. I think the answer is no. And I think this is a function of what I sometimes describe as the constitution outside the courts. When you are operating outside the courts, as what is occurring here, you will get some conflict, you will get some tension, but at the same time the President at least for his part and his Administration for its part has put forward the support for its positions and is trying to in a sense explain what it has done. Obviously this institution will push back to some extent. But that is the nature of the process. But I don't think there is any--to answer your question succinctly, there is no finding of any legal violation the President or his Administration has committed. There is disagreement but disagreement doesn't constitute violation. Mr. Conyers. Thank you, Professor Gerhardt. Thank you, Mr. Chairman. Mr. Smith. Thank you, Mr. Conyers. The gentleman from California, Mr. Gallegly, is recognized. Mr. Gallegly. Thank you very much, Mr. Chairman, and thank you for calling this hearing. While I want to have an opportunity to have a couple of questions for our witnesses I would just like to respond to my good friend from Michigan's opening statement. And he truly is my good friend and has been a good friend for a long time and will continue to be a good friend. But I have to respectfully disagree with one of the statements he had regarding voter ID. With all due respect, I believe the greatest threat that we have to our democracy or to any democracy is fraud in the electoral process. And if we don't have control over the legitimacy of an election, that compromises the democracy more than anything. And so we may have a little disagr