Tuesday, March 1, 2016

Statement of Ranking Member John Conyers, Jr. Full Committee Hearing on “The Original Understanding of the Role of Congress and How Far We’ve Drifted From It” Before the Executive Overreach Task Force

Dean of the U.S. House
of Representatives
John Conyers, Jr.
“At the markup for the resolution establishing the Executive Overreach Task Force, I had expressed the concern that this Task Force might be used as a platform for partisan political attacks.

“I also expressed the hope that we could work collaboratively in some areas of mutual interest, in particular those centering on strengthening Congress’s ability to conduct oversight of the Executive Branch.

 “I remain hopeful that there is room on this Task Force for some bipartisan cooperation.

 “That being said, I also recognize that there will inevitably be areas of fundamental philosophical differences between the Majority and Minority.

 “On some level, our hearing topic today on ‘The Original Understanding of the Role of Congress and How Far We’ve Drifted From It,’ reflects both potential paths for this Task Force.

“To begin with, there are indeed policy areas, like war powers matters, where Congress has failed to assert itself sufficiently, leaving room for the President to expand his unilateral authority.

“As the Minority witness, Professor Stephen Vladeck, will testify in greater detail, the earliest Congresses understood that inaction or indifference by Congress in placing specific limits on a President’s war-making authority enables, and even invites, the expansion of Presidential power at Congress’s expense. Simply put, if Congress fails to act to place limits on Presidential authority, it has little basis to complain about separation of powers concerns.

“It is also important to remember that when Congress has delimited Executive power by statute, there is a difference between cases where a President simply ignores such limits and cases where a President interprets a broad delegation of authority by Congress.

“A President might simply ignore clear statutory limits that Congress has placed on his power. President George W. Bush, for example, claimed the authority to ignore statutory limitations on his exercise of power with regard to national security, including prohibitions on torture and warrantless surveillance, among other things. In other cases, Congress has given a broad grant of authority to the Executive Branch for the purpose of implementing statutes and there may be a dispute as to the precise scope of that grant of authority.

“It is important not to conflate these situations.  The former is far more troubling from a separation of powers perspective than the latter. Finally, we must ask why it is that Congress has chosen in many instances to delegate authority to the Executive Branch, particularly with respect to economic and health and safety regulation.

“In large part, this is a reflection of the fact that we live in a society that is far more complex than the one that existed in the late 1700's. As even our Majority witnesses acknowledge, the country and the Congress were far smaller and simpler at that time.

“And the Framers wisely built in some ‘flex in the joints’ of our Constitution precisely to capture all the changes to our society and economy that could not be foreseen in the 18th Century. It is important to remember that even where Congress has delegated authority to the Executive Branch, the power to legislate ultimately still resides with Congress.

 “Congress is always free to rescind its delegation of authority or to narrow the scope of delegation. I look forward to an interesting and engaging discussion and thank our witnesses for their testimony.”

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