Thursday, December 5, 2013

Ranking Member Conyers Statement at Judiciary Hearing on Presidential Powers

(WASHINGTON) – Today, the U.S. House Judiciary Chairman held a full committee hearing entitled, “The President’s Constitutional Duty to Faithfully Execute the Laws.” During his opening remarks, Ranking Member John Conyers, Jr. (D-Mich.) delivered the following statement:

U.S. Representative
John Conyers, Jr.
“The President’s constitutional duty to faithfully execute the laws would be an important issue worthy of a hearing by the full Committee if there was any evidence that the President has indeed failed to fulfill this duty. But, unfortunately it appears that my colleagues on the other side of the aisle view policy disagreements as constitutional crises and proof of possible wrongdoing. The fact is that disagreements, or even allegations that a program is not being carried out the way Congress intended, should not raise constitutional concerns. If my friends want to disagree with the Administration, that is certainly their right, but we should keep some perspective here and consider the following issues.

“To begin with, some of the Administration’s actions criticized by the Majority are not really that out of the ordinary. Allowing flexibility in the implementation of a new program, even where the statute mandates a specific deadline, is neither unusual nor a constitutional violation.  It is, rather, the reality of administering sometimes complex programs.

“This has been especially true in the case of health care legislation.  The Affordable Care Act is not the first time implementation of a new law has not gone according to schedule. President George W. Bush, for instance, failed to meet some of the deadlines in Medicare Part D, even though it was legislation he strongly supported. And, it is especially interesting that Members – who strenuously opposed the Affordable Care Act and who have worked diligently to obstruct its implementation – now complain that the President is unconstitutionally impeding the implementation of his signature legislative accomplishment. Taking steps to deal with the realities of the implementation of a complex program hardly constitute a failure to take care that the laws are faithfully executed.  It is, rather, part and parcel of doing just that. There have been Administrations in the past that have obstructed the implementation of laws they opposed.  But no one is seriously contending that President Obama opposes the Affordable Care Act – ‘Obamacare’ – or that his Administration’s actions constitute intentional obstruction of the law. And when, in the past, there have been legitimate concerns about delays in a law’s implementation, parties have turned to the Administrative Procedure Act.  That Act allows the courts to determine whether a delay is unreasonable and order appropriate relief.   Notably, no one has alleged that such action is necessary here. Instead, critics of President Obama and his signature legislation allege a constitutional crisis.  But no court has ever found delay in implementation of a complex law to constitute a violation of the Take Care Clause.

“Second, some of my colleagues seem to think that the exercise of prosecutorial discretion – a traditional power of the executive – is a constitutional violation. The decision, for example, to defer deportation of individuals who were brought to the United States as children, who have not committed felonies or serious misdemeanors, and who do not pose a threat to public safety – so-called ‘Dreamers’ –  is a classic exercise of such discretion. The Administration cannot legalize these individuals’ status without a basis in law, but the Administration’s decision to defer action against particular individuals is neither unusual nor unconstitutional. The Supreme Court has consistently held that the exercise of such discretion is a function of the President’s powers under the Take Care Clause. For example, in Heckler v. Chaney, the Court held that ‘an agency’s refusal to institute proceedings shares to some extent the characteristics of a decision of a prosecutor in the Executive Branch not to indict - a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to ‘take Care that the Laws be faithfully executed.’

“Finally, I hope we can distinguish between failing to execute the laws, and following the explicit dictates of the law. Some of our colleagues contend that the President’s decision not to defend the Defense of Marriage Act (DOMA), violated the Take Care Clause.  In fact, the President made a judgment, subsequently vindicated by the Supreme Court, that the Act was unconstitutional.  While the case was pending, he continued to comply with the law. The President’s decision not to defend the law was not novel.  Indeed, Congress itself recognized this possibility. Section 530D of title 28 of the United States Code sets out procedures for the Attorney General to follow in such instances. It requires the Attorney General to report to Congress any instance where a formal or informal policy is established or implement ‘to refrain from enforcing, applying, or administering any provision of any Federal statute, rule, regulation, program, policy, or other law whose enforcement, application, or Administration is within the responsibility of the Attorney General or such officer on the grounds that such provision is unconstitutional’ or ‘determines to contest affirmatively, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute, rule, regulation, program, policy, or other law.’

“Congress understood that, sometimes, the Administration’s duty to take care that the laws be faithfully executed might include recognizing that a particular statute is unconstitutional.  The Constitution is, as we are told in Article VI of the Constitution, the supreme law of the land.  Presidents are required to follow it. Past Administrations have exercised their discretion not to defend a law that they have deemed unconstitutional.  For example, while Acting Solicitor General, John Roberts – now Chief Justice of the United States – refused to defend a law that he believed to be unconstitutional.  In the 1990 case of Metro Broadcasting v. FCC, Chief Justice Roberts argued that a statute providing for minority preferences in broadcast licensing was unconstitutional.  Despite Supreme Court precedent applying a more permissive standard of review, he argued that strict scrutiny applied.   Senate Legal Counsel appeared as amicus curiae to defend the law, and prevailed. Clearly there were reasonable arguments that Chief Justice Roberts could have made in defense of the law.  Yet no one suggested that he violated the Constitution by arguing for the Court to strike that law down.  His view was not vindicated in that case, but may ultimately have resulted in a shift in the law, which makes it additionally clear that the Administration’s decision not to defend DOMA was neither unprecedented nor inappropriate.

“With that, I want to welcome our witnesses, and I look forward to hearing their testimony on these important questions.”

Remarks as prepared for delivery.
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