THE ORIGINAL UNDERSTANDING OF

THE ROLE OF CONGRESS AND

HOW FAR WEVE DRIFTED FROM IT

HEARING
BEFORE THE

EXECUTIVE OVERREACH TASK FORCE

OF THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION

MARCH 1, 2016

Serial No. 11461

Printed for the use of the Committee on the Judiciary

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COMMITTEE ON THE JUDICIARY

BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, JR.,
JOHN CONYERS, JR., Michigan
JERROLD NADLER, New York
Wisconsin
ZOE LOFGREN, California
LAMAR S. SMITH, Texas
SHEILA JACKSON LEE, Texas
STEVE CHABOT, Ohio
STEVE COHEN, Tennessee
DARRELL E. ISSA, California
HENRY C. HANK JOHNSON, JR.,
J. RANDY FORBES, Virginia
Georgia
STEVE KING, Iowa
PEDRO R. PIERLUISI, Puerto Rico
TRENT FRANKS, Arizona
JUDY CHU, California
LOUIE GOHMERT, Texas
TED DEUTCH, Florida
JIM JORDAN, Ohio
LUIS V. GUTIERREZ, Illinois
TED POE, Texas
KAREN BASS, California
JASON CHAFFETZ, Utah
CEDRIC RICHMOND, Louisiana
TOM MARINO, Pennsylvania
SUZAN DelBENE, Washington
TREY GOWDY, South Carolina
L LABRADOR, Idaho
HAKEEM JEFFRIES, New York
RAU
DAVID N. CICILLINE, Rhode Island
BLAKE FARENTHOLD, Texas
SCOTT PETERS, California
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan
SHELLEY HUSBAND, Chief of Staff & General Counsel
PERRY APELBAUM, Minority Staff Director & Chief Counsel

EXECUTIVE OVERREACH TASK FORCE

STEVE KING, Iowa, Chairman
F. JAMES SENSENBRENNER, JR.,
STEVE COHEN, Tennessee
Wisconsin
JERROLD NADLER, New York
DARRELL E. ISSA, California
ZOE LOFGREN, California
LOUIE GOHMERT, Texas
SHEILA JACKSON LEE, Texas
JIM JORDAN, Ohio
HENRY C. HANK JOHNSON, JR.,
Georgia
TED POE, Texas
JUDY CHU, California
JASON CHAFFETZ, Utah
TED DEUTCH, Florida
TREY GOWDY, South Carolina
L LABRADOR, Idaho
CEDRIC RICHMOND, Louisiana
RAU
SCOTT PETERS, California
RON DeSANTIS, Florida
KEN BUCK, Colorado
MIKE BISHOP, Michigan
PAUL B. TAYLOR, Chief Counsel
JAMES J. PARK, Minority Counsel

(II)

CONTENTS
MARCH 1, 2016
Page

OPENING STATEMENTS
The Honorable Steve King, a Representative in Congress from the State
of Iowa, and Chairman, Executive Overreach Task Force ...............................
The Honorable Steve Cohen, a Representative in Congress from the State
of Tennessee, and Ranking Member, Executive Overreach Task Force ..........
The Honorable Bob Goodlatte, a Representative in Congress from the State
of Virginia, and Chairman, Committee on the Judiciary .................................
The Honorable John Conyers, Jr., a Representative in Congress from the
State of Michigan, and Ranking Member, Committee on the Judiciary .........

1
3
4
5

WITNESSES
Matthew Spalding, Ph.D. Associate Vice President and Dean of Educational
Programs Hillsdale College
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
Joseph Postell, Assistant Professor of Political Science, University of Colorado, Colorado Springs
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
James C. Capretta, Visiting Fellow, American Enterprise Institute and Senior
Fellow, Ethics and Public Policy Center
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
Stephen I. Vladeck, Professor of Law, American University Washington College of Law
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................

7
10
31
33
45
47
56
59

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Darrell E. Issa, a Representative in
Congress from the State of California, and Member, Executive Overreach
Task Force ............................................................................................................
Additional material submitted by the Honorable Darrell E. Issa, a Representative in Congress from the State of California, and Member, Executive
Overreach Task Force ..........................................................................................

(III)

77
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THE ORIGINAL UNDERSTANDING OF THE

ROLE OF CONGRESS AND HOW FAR WEVE
DRIFTED FROM IT
TUESDAY, MARCH 1, 2016

HOUSE

OF

REPRESENTATIVES

EXECUTIVE OVERREACH TASK FORCE

COMMITTEE

ON THE

JUDICIARY

Washington, DC.
The Task Force met, pursuant to call, at 10 a.m., in room 2237,
Rayburn House Office Building, the Honorable Steve King (Chairman of the Task Force) presiding.
Present: Representatives King, Goodlatte, Issa, DeSantis, Bishop,
Cohen, Conyers, Nadler, Johnson, Chu, Deutch, and Peters.
Staff present: (Majority) Paul Taylor, Chief Counsel, Executive
Overreach Task Force; Zachary Somers, Parliamentarian & Chief
Counsel, Committee on the Judiciary; Tricia White, Clerk; (Minority) James J. Park, Minority Counsel; and Veronica Eligan, Professional Staff Member.
Mr. KING. If the Executive Overreach Task Force will come to
order, and without objection the Chair is authorized to declare recess of the Committee at any time. I would start with my opening
statement.
I want to thank Chairman Goodlatte for supporting this special
House Judiciary Committee Task Force on Executive Overreach,
which will examine the problem of Congress gradual ceding of legislative power to other parts of the Federal Government, and the
Presidents taking additional legislative powers even beyond that.
This is much more than a mundane process problem. It is a tragic result for individual rights and liberties. Policies imposed by
Federal agencies are crafted by unelected bureaucrats. Because
those bureaucrats do not have to answer to the American citizens
over the course of regular elections, they have little understanding
of the desires and concerns of those Americans. And so they
produce policies that, for example, make energy more expensive,
take peoples property through Federal regulations, drive down
wages through lawless amnesty programs, and restrict communications on the Internet.
The Founders insisted and insisted on keeping policy making in
the hands of regularly elected congressional representatives precisely to avoid these sorts of policy catastrophes. As the former his(1)

2
torian of the House of Representatives, Robert V. Remini has written, The Framers of the Constitution were absolutely committed
to the belief that a representative body accountable to its constituents was the surest means of protecting liberty and individual
rights.
So anxious were they to affirm legislative supremacy in the new
government that they failed to flesh out the executive and judicial
departments in the Constitution, leaving the task to Congress and
thereby assuring that the legislature would retain control of the
structure and authority of both those branches of government.
And within that system of legislative supremacy the House of
Representatives was to serve a unique role. Alone among all Federal institutions the House has consisted solely of those duly elected by the people.
Further, the Constitution grants the House the exclusive power
to originate all legislation for raising revenue. The House of Representatives is the most regularly elected body in the Federal Government. In Federalist 39 James Madison wrote, The House of
Representatives is elected immediately by the great body of the
people. As such the House of Representatives will derive its powers
from the people of America.
In Federalist 52 Madison elaborated, As it is essential to liberty
that the government, in general, should have a common interest
with the people, so it is particularly essential that the House
should have an immediate dependence on and an intimate sympathy with, the people. Frequent elections are unquestionably the
only policy by which this dependence and sympathy can be effectually secured. That is James Madison.
In this age of hyper-partisanship when more and more attention
is paid to political results and less and less to Constitutional
means, we tend to lose sight of why the Founders created the system that they did. Focus not on results but on process and a separation of powers.
Under that system of a separation of powers each branch of the
Federal Government was expected to protect its own Constitutional
powers such that no single branch accrued power it was not allocated by the Constitution. The Founders understood that individuals were free in direct proportion to each branch of the Federal
Government staying strictly within its own bounds, and the most
important lane was the legislative lane; a narrow road of strictly
enumerated powers written by a Congress consisted of duly elected
representatives; with the House of Representatives the body most
regularly elected, and with special powers over the origination of
revenue bills in the drivers seat.
But today many legislative and budget powers have been ceded
to Presidents and the executive branch through statutes delegating
legislative responsibility to Federal regulatory agencies composed
of unelected people; and statutes mandating automatic and increased spending on certain programs administered by the executive branch.
Other legislative powers have simply been seized by Presidents
who exercise sheer will to trump the rule of law. Whatever the
means of the loss of legislative power by Congress it is imperative
that Congress reclaim it, not simply for its own sake, but because

3
without it individual rights and liberties cannot flourish as the
Founders intended.
It has long been my view that the Framers of our Constitution
structured the three branches of government in a fashion that,
with as bright a lines as they could draw, between each three
branches of government. Understanding though that language
could not precisely define the distinctions between an Article 1, Article 2, and Article Three authorities within the Constitution, but
they did rely on human nature and they believed that each branch
of government would jealously protect the powers granted to it in
the Constitution, and there would be a static tension that would be
achieved between the three branches of government.
I believe that has shifted over the years and we are here to address this in this Task Force. And, again, I thank Chairman Goodlatte for organizing this Task Force. And I would recognize the
Ranking Member, Mr. Cohen, for his opening statement.
Mr. COHEN. Thank you, Mr. King, and pleased to be serving as
the Ranking Member of this Committee, the Executive Overreach
Task Force. I appreciate serving with Mr. Conyers and fellow Members of this Committee and being the Chair. Mr. King and I share
a lot of things in common, that is true. We both have the first
name Steve. Neither one of us endorse Donald Trump. But we believe in the Constitution, we want to have good government, and
we care about government, and we work together on this Committee.
The Constitution makes clear that all legislative power is vested in the Congress, Article 1. Some of our witnesses today take
the view that this vesting of legislative power means that Congress
cannot constitutionally delegate power to executive branch agencies, even when it retains ultimate authority to determine when
and how much power should be delegated.
They ask us to look only at what they define to be the founding
generations view of government and the separation of powers, and
asked us to reach that same conclusion. Telling us that much of the
intervening 200 plus years is not of any real importance in understanding how our Constitution should work.
Perhaps unsurprisingly they suggest that the Constitution, as
they claim it was understood by the Framers, may require Congress to cut funding for Social Security, Medicare, and Medicaid.
Maybe coincidentally they argue that the reading of the Constitution raises questions about the Constitutionality of the Affordable
Care Act, which has thus far provided 18 million Americans with
health insurance, ended discrimination by insurers against those
with pre-existing conditions, and allowed 2.3 million young adults
under 26 to remain on their parents health insurance, among
other benefits.
Indeed some of our witnesses contend that Congress went astray
when it began to delegate authority to the executive branch to enforce regulations on Wall Street, protect public health and the environment, ensure workers rights, and guarantee civil rights. It is
not too much of a stretch to say that some of our witnesses would
like to extend much of the 20th and 21st century would like see
much of that repealed. My guess is that they probably lack the
votes to achieve such an end through the political process. So in-

4
stead they just turn to a Constitutional theory that says we should
only look at one snapshot of our history and ignore all the rest.
Why is that that we have agencies that develop regulations? As
the Supreme Court has recognized Congress delegation of authority to the Executive arises from the practical recognition that our
society and our economy have become far more complex, and problems far more technical than in the late 18th century, and indeed
when the Founders created our Nation.
Congress had brought principles into statute and leaves it to expert agencies to carry out that statute in conformity with those
principles. It is the Executive that does administer the law. In
short, Congress retains ultimate legislative authority, it can delegate that authority, and it can also rescind or limit the scope of
that delegation.
This process has worked well to millions of Americans for a wide
variety of harmsprotect millions of Americans from a wide variety of harms, enhance innovation, and economic growth, and ensure basic fairness and justice. And it was made possible by a
broadly written Constitution that was flexible enough to accommodate changing times and circumstances.
That was the true wisdom of the Constitutions Framers to create
a document and one strong enough to serve as a clear framework
of government, but also adaptable so as to be enduring.
I look forward to hearing our witnesses testimony. I yield back
the balance.
Mr. KING. I thank the gentleman and now I recognize the Chairman of the full Committee, Mr. Goodlatte, from Virginia for his
opening statement.
Mr. GOODLATTE. Thank you, Mr. Chairman. James Madison
wrote in Federalist No. 47, The concentration of executive, legislative, and judicial power in the same hands is the very definition
of tyranny. Yet White House Chief of Staff, Denis McDonough, recently said, Audacious executive actions are being crafted to make
sure the steps we have taken are ones we can lock down, and not
be subjected to undoing through Congress or otherwise. Beyond
even those unconstitutional actions the President has already
taken.
The Founders would have expected Members of the House of
Representatives, known as the peoples house for its most direct
connection to the will of the people, to aggressively guard their role
in the Constitutional legislative process. This Task Force will do
just that in a manner that educates other Members and the public
on the dangers to current and future generations of the ceding of
power away from the peoples house, and Congress generally.
In Federalist No. 57 Madison wrote, The House of Representatives is so constituted as to support in the members and habitual
recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can
be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise
of it is to be reviewed.
Keeping legislative power, and in particular budgeting power,
close to the will of the people was considered so important that the

5
Constitution specifically provides that the House of Representatives
has the exclusive authority to originate revenue bills.
Indeed regarding budget matters when the first Congress in 1789
considered the law creating the Treasury Department in the executive branch, the bill as originally introduced authorized the Secretary of the Treasury to devise and report plans for the improvement and management of the revenue. But it was feared that even
giving the Secretary of the Treasury the modest power to report
plans implied too much authority for the executive branch. And so
the bill was amended to authorize the Secretary only to prepare
plans regarding the management of revenue.
The amended bill also specifically required the Secretary to make
report and give information to either branch of the legislature in
person or in writing, as he may be required, respecting all matters
referred to him by the Senate of House of Representatives, or what
shall appertain to his office.
It thereby allowed Congress to request financial information directly from the Treasury Secretary bypassing the President; and
made clear that Congress and not the President was the ultimate
authority on budget issues.
But today as our witnesses will elaborate, Congress exercises far
less control over budget matters than was originally intended.
Whereas early Congresses specified exactly how much money would
be spent for how long to build a lighthouse or a post road, for example. Many Federal programs today enacted by Congresses decades ago are administered by the executive branch and funded on
an autopilot basis, their allocations increasing automatically by
statute without the need for any periodic review by Congress.
The threat posed by the ceding of legislative power by Congress
to this generation and future generations, can often be seen abstract in the midst of intense policy debates in an historically hyper
partisan environment.
As law Professor David Bernstein has written, The authors of
the Constitution expected that Congress as a whole would be motivated to preserve its authority against Presidential encroachment.
The Founders, however, did not anticipate the development of our
two party system. At any given time around half the Members of
Congress belong to the same party as the President, and do not
want to limit their Presidents authority.
Yet as then Chairman of the House Judiciary Committee Democrat John Conyers said under the Presidency of Republican George
W. Bush, I believe it is in all of our interests to work together to
rein in any excesses of the executive branch, whether it is Democratic, Republican, or even Libertarian hands. I agree with Ranking Member Conyers, and I look forward to hearing from all of our
witnesses today.
Mr. KING. Thank you, Mr. Chairman. Now I recognize the Ranking Member of the full Committee, Mr. Conyers, for his opening
statement.
Mr. CONYERS. Thank you, Mr. Chairman, and I thank the previous speaker for his recollection of our comment at an earlier period. Members of the Committee I have expressed from time to
time the hope that we could work collaboratively in some areas of
mutual interest; but in particular those centering on strengthening

6
Congress ability to conduct oversight of the executive branch. I am
hopeful that there is room on this Task Force for bipartisan cooperation, as much as possible.
That being said, I also recognize that there will inevitably be
areas of fundamental philosophical differences between the majority and the minority. On some level our hearing topic today on the
original understanding the role of Congress and how far we have
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, to me, failed to assert itself sufficiently
leaving room for the President to expand his unilateral authority.
As one of our witnesses, Professor Vladeck, will testify in greater
detail the earliest Congresses understood that inaction or indifference by Congress in placing specific limits on a Presidents war
making authority, enables and even invites the expansion of Presidential power at Congress 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 the 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
1700s.
As even our witnesses here this morning 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. And so I look forward to an engaging discussion with our witnesses and among ourselves, and thank all of you for being here.
Thank you, Mr. Chairman.
Mr. KING. I thank the dapper gentleman from Michigan for his
statement.

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And without objection, other Members opening statements will
be made a part of the record.
Let me now introduce our witnesses. Our first witness is Matthew Spalding; he is Associate Vice President and Dean of Educational Programs, Hillsdale College. Mr. Spalding also oversees
the operations of the Allen P. Kirby, Jr. Center for Constitutional
Studies and Citizenship here in Washington, D.C.
Our next witness is Joseph Postell; he is the Assistant Professor
of Political Science at the University of Colorado at Colorado
Springs. Professor Postell is currently completing a book titled,
Bureaucracy in America, The Administrative State, and American
Constitutionalism.
Our third witness is James C. Capretta, visiting fellow at the
American Enterprise Institute, and senior fellow at the Ethics and
Policy Center. Mr. Capretta has served as an Associate Director at
the White House Office of Management and Budget, and as a senior health policy and analyst at the U.S. Senate Budget Committee,
and at the U.S. House Committee on Ways and Means.
Our fourth and final witness is Stephen Vladeck, Professor of
Law at American University, Washington College of Law, and he
is teaching in a research focused on Federal jurisdiction, Constitutional law, and national security law. We welcome you all here
today and look forward to your testimony.
Each of the witnesses statements will be entered into the record
in its entirety. I ask that each witness summarize his testimony in
5 minutes or less to help you stay within that time. There is a timing light in front of you. The light will switch from green to yellow
indicating you have got 1 minute to conclude your testimony. When
it turns red it indicates that we appreciate it if you have concluded
your testimony.
Before I recognize the witnesses it is the tradition of the Subcommittee that they be sworn in so please stand to be sworn in.
Do you solemnly swear that the testimony that you are about to
give will be the truth, the whole truth, and nothing but the truth,
so help you God?
You may be seated. Let the record reflect that the witnesses answered in the affirmative. I now recognize our first witness, Mr.
Spalding. Mr. Spalding, your 5 minutes.
TESTIMONY OF MATTHEW SPALDING, Ph.D. ASSOCIATE VICE
PRESIDENT AND DEAN OF EDUCATIONAL PROGRAMS HILLSDALE COLLEGE

Mr. SPALDING. I thank you, Mr. Chairman. My thesis is actually

quite simple. It was Congress, the intended primary branch of government, by choosing to diminish its Constitutional powers which
enabled the rise of the so-called imperial Presidency and the temptations of executive overreach of our day. Likewise Congress has
the power to stop the executive from overwhelming American selfgovernment with bureaucratic rule should it choose to do so.
In my testimony I discuss the rule of law as it informed the
American Constitution, culminating in absolute centrality of lawmaking and legislatures. The full implications of which are seen in
the American founding itself, especially the consent to the government; hence, the importance of Article 1, which lodges a basic

8
power of government in the legislature and its ability to make
laws.
Its core powers listed in Article 1, utmost of significance I point
to the Power of the Purse, the Appropriations Clause in Article 1,
Section Nine; a limit most notably on executive action.
And Congress, not the executive, has the authority needed to
carry out additional functions under the necessary and proper
clause. The separation of powers of the defining structural mechanism by way that this works such that the self-interests of each
branch make it a check on the others, and they jealously protect
their own powers.
This changed with the progressives. They positive a sharp distinction between politics and what they call administration. Politics
would remain the realm of expressing opinions but the real decisions in theory, they argued, wouldand the details of government
would be handled by administrators in what they called the administrative state.
The Founders went to great length to preserve consent and limit
government through public institutions and the separation of powers. The progressives held that the barriers erected by the Founders had to be removed, or circumvented, to unify and expand the
powers of government. In this new conception government is administrative and bureaucratic; government must always evolve and
expand. In theory it must remain unlimited.
We have been moving down this path slowly for some time. The
most significant shift, I argue, occurred under the Great Society
when the Federal Government set about creating programs to manage the whole range of socioeconomic policy. The expansion of activities led to vast new centralizing authority in the Federal Government, and a vast expansion of Federal regulatory authority. It
also brought with it what we conventionally mean by big government, huge workforces, massive expenditures, extensive debt, and
created a new source of conflict between the executive and the legislative.
At first Congress had the upper hand; Congress had been creating the bureaucracy to carry out its wishes. But the more Congress gave away its powers in the form of broad regulatory authority, the more bureaucrats effectively became the lawmakers. The
rise of the new imperial Presidency, and it should be shocking but
no surprise, as Congress has expanded the bureaucracy creating
programs, delegating authority, neglecting budgeting; the executive
has attained unprecedented levels of authority. Our executives can
command the bureaucracy to implement new procedures and policies without the cooperation of Congress by abusing executive discretion, by exploiting the vagaries of poorly written laws, and now
by willfully neglecting and disregarding the laws which indeed are
clear.
By acting unilaterally without or against the authority of Congress, the executive not only assumes the duty of legislative powers
without legislative accountability, but also avoids responsibility for
executing the laws legitimately authorized by Congress. Once it
has been established that the President can govern without Congress and, by extension, without the law it will prove difficult and

9
perhaps impossible to prevent future executives from following the
same lawless path.
The only way to reverse the trend of a diminishing legislature
and the continued expansion of the bureaucratic executive is for
Congress to strengthen its Constitutional muscles. Congress must
reassert its legislative authority and to cease delegating what
amounts to power to make laws. If it allows administrators the discretion to create significant rules Congress can assert its authority
to approve or reject those rules.
Second, Congress must regain legislative control or is stays in its
labyrinth state bringing consent and responsibly back through better lawmaking up front and, as a result, better oversight after the
fact. The day to day back and forth of overseeing the operations of
government will do more than anything else to restore legislative
control or it stays unlimited government.
Third, one place where the power of Congress is not entirely lost
and where there is opportunity for gaining leverage over an unchecked executive is congress Power of the Purse, strategically controlling using the budget process. If Congress does not act to correct the growing tilt toward executive bureaucratic power the structure of our republican government will be fundamentally and, perhaps, permanently altered.
Congress needs to think strategically and act as a Constitutional
institution. And it must begin doing so forcefully stating its argument, putting down clear markers, and drawing enforceable institutional lines before the inauguration of the next President, whoever that might be, and regardless of their political party.
Thank you.
[The prepared statement of Mr. Spalding follows:]

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Mr. KING. All right thank you, Mr. Spalding. And now I will recognize Mr. Postell for his testimony.
TESTIMONY OF JOSEPH POSTELL, ASSISTANT PROFESSOR OF
POLITICAL SCIENCE, UNIVERSITY OF COLORADO, COLORADO SPRINGS

Mr. POSTELL. Thank you very much, Mr. Chairman, and Members of this Task Force. I am delighted to be here and I appreciate
the opportunity to testify. In my written testimony and in my brief
remarks this morning I am addressing two questions. The first,
how the early Congresses avoided delegating its legislative power
over to the executive. And second, how Congress structured itself
in its early decades in order to ensure that it, and not the executive, set the legislative agenda.
Today Congress routinely delegates massive legislative lawmaking power over to administrative agencies. This is contrary to
the text of the Constitution and it is contrary to the intentions of
the Framers. Some scholars claim that early Congresses delegated
power to the executive and, therefore, it is perfectly okay for Congress doing so today. The historical record, however, shows otherwise. Article 1 of the Constitution states plainly, All legislative
powers herein granted shall be vested in a Congress of the United
States. It does not give Congress the option in Article 1 to delegate
those powers. It sets up, in other words, a non-delegation principle.
Early Congresses observed this principle very carefully. The laws
they passed were highly detailed, they limited the discretion of the
executive. Congress wrote every detail of the tariff laws in its first
decades, specifying not only the amounts of the taxation but the
products to be taxed. Congress wrote in very specific detail the
routes of the post roads in the early decades of the Republic.
In the second Congress James Madison, a Member of the House,
said this, We must distinguish between the deliberative functions
of the house and the ministerial functions of the executive powers.
Legislative determinations, he insisted, must remain in Congress
hands; ministerial execution of law is the job of the executive.
But this leads to my second point. Although Congress avoided
delegating its legislative powers in the early decades of the Republic, the early Congresses ran into a related problem. The problem
was the executive was influencing the legislative process, setting
the agenda for Congress rather than letting leaders within the
Congress set the agenda. Our first Treasury Secretary, Alexander
Hamilton, was by all accounts the most important legislative policymaker in the first decade of the Republic.
As President, Thomas Jefferson actually wrote bills to be sent
over to Congress to be passed. This was not appropriate for a system of separated powers and Congress knew to reverse this it had
to reclaim the authority to set its own agenda. Congress solution
to the problem was to set up internal structures of power to provide the necessary leadership within Congress to allow it to set and
implement its own agenda. Without leadership Congress realized it
would succumb to what is called a collective action problem. That
without leaders in the Congress, Members would cater to their districts back home rather than working together to pass laws in the
national interest.

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Throughout the 19th century Congress modified its internal procedures and strengthened its leadership in order to provide the solution to these collective action problems. By 1825 the House had
set up 28 standing Committees to provide it with the expertise
needed to free it from the expertise of the executive branch.
Later in the 1800s the Speaker was given significant, even massive, authority to set the legislative agenda and influence Members
to promote that agenda. Most of that authority centralizing leadership in the Congress has since been eliminated by progressive reformers.
As a result of its internal leadership that it developed over the
first century of its existence, Congress ability to manage its affairs
improved dramatically. And not coincidentally in the 19th century
the power of the executive diminished dramatically. The early experience of the Congress, therefore, teaches us a second lesson.
Without internal leadership Congress will follow the agenda set by
the executive rather than its own. A Republican form of government is predicated upon a strong legislative branch to serve as the
place of popular representation. One person in the White House
cannot possibly adequately represent the American people. In seeking to preserve its role Congress should consult the lessons of its
early experience.
Members of this Task Force, thank you very much for the opportunity to present this testimony. And I look forward to your questions.
[The prepared statement of Mr. Postell follows:]

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Mr. KING. Thank you, Mr. Postell, for your testimony. And the
Chair now recognizes Mr. Capretta for his testimony.
TESTIMONY OF JAMES C. CAPRETTA, VISITING FELLOW,
AMERICAN ENTERPRISE INSTITUTE AND SENIOR FELLOW,
ETHICS AND PUBLIC POLICY CENTER

Mr. CAPRETTA. Thank you, Mr. Chairman, and Members of the

Task Force. I am very pleased to be here this morning. I am very
pleased to be here this morning, thank you for inviting me.
The Power of the Purse is arguably the most important power
granted to Congress in the Constitution. It is what separates our
system of government from many others. The United States President, unlike a king, cannot decide to withdraw funds from the
Treasury without an appropriation by Congress, no matter how
pressing the purpose. Even in an emergency, such as in the aftermath of 9/11, Presidents must go to Congress and ask for the funding.
This Power of the Purse is the primary means by which the peoples elected representatives exert control over the size, direction,
and activities of the Federal Government.
Over recent decades Congress has chosen to steadily dilute this
power by granting to the executive branch permanent, and oftentimes unlimited or ambiguous, appropriations. This granting of
permanent spending authority, generally for programs that are
called entitlements, has delegated to the executive branch significant discretion over the terms of this spending. Moreover because
the spending authority is open ended or indefinite in appropriation
terms, Congress has given up substantial control over the overall
size of government, over total Federal spending, and over deficits
and debt.
The list of programs with permanent spending authority in current law is long. It begins, of course, with the major entitlement
programs but there are many other programs with permanent
spending authority too. Including the Supplemental Nutrition Assistance Program, the Social Services Block Grant, some functions
of border security and control, portions of Federal housing assistance, reinsurance and risk corridor payments to insurance companies under the Affordable Care Act, and much else.
The spending authority provided by Congress for other programs
are often flexible enough to accommodate substantial and expensive executive discretion.
For instance, the current administration used its authority under
the SNAP Program to waive the state enforced work requirements
in the program for a number of years. The result has been a surge
in enrollment in the program that is well above the historical
norm, even after taking into account the soft labor market of recent
years.
The provision of permanent and open-ended spending authority
by Congress has resulted in a complete transformation of the Federal budget; 64 percent of the Federal budget was devoted to annually appropriated accounts in 1965. By 2015 that portion of the
budget had shrunk to 32 percent, while spending on mandatory
and entitlement programs now takes up more than three fifths of
the entire Federal budget.

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It is not a coincidence that as budgetary pressures have risen the
growth of political pressures have built to cut discretionary appropriations. In recent budget deals it has been much easier for Congress to apply significant pressure on discretionary accounts than
it is to apply pressure on the permanently appropriated accounts.
And we can see the result of that in the long-term trend toward
lower spending on that portion of the budget.
It will not be possible to reverse the trend toward permanent appropriations authority quickly, nor would it be advisable for Congress to undo such authority in every program. I am not arguing
for that.
For instance, in Social Security it is important to have a program
with some certainty associated with the provision of retirement
benefits. Workers need that to make appropriate financial plans.
But making allowances for the legitimate need for program certainty need not mean that Congress must cede all budgetary control to the executive branch. Congress should consider several steps
to reverse current trends and bring more spending back under the
direct control of the House and Senate.
Through the Budget Resolution Congress could consider imposing
limits on what is spent on the non-discretionary portion of the
budget. This would require a change of law before this could be
done. Such a limit would need to be enforced with some automatic
restraints if it were ever to be breached. And some programs could
be accommodated with exemptions or adjustments, but the basic
idea being putting an overall limit would restore Congress ability
to budget in this area of the budget that it is not controlling today.
Further, Congress could also begin to reassert its role by imposing specific limits on certain programs. For instance, Congress
could specify that a programs permanent appropriation may not
grow by more than some rule, such as the rate of inflation. If the
program were projected to grow faster than that then the executive
branch would be required to come back to the Congress and ask for
additional spending authority, perhaps then triggering some reforms.
The U.S. Constitution gives Congress the sole power to appropriate funds out of the Treasury. Over many years, for understandable reasons, Congress has delegated a lot of that authority now to
the executive branch. Its time to begin reversing that trend. Thank
you.
[The prepared statement of Mr. Capretta follows:]

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Mr. KING. Thank you for your testimony, Mr. Capretta. And now
I would recognize Mr. Vladeck for his testimony.
TESTIMONY OF STEPHEN I. VLADECK, PROFESSOR OF LAW,
AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW

Mr. VLADECK. Great. Thank you, Chairman King, Ranking Member Cohn, distinguished Members of the Task Force. Although
many have been quick to blame the President for the perceived
drift in the separation of powers, I want to suggest in my brief remarks today that any such drift is at least as much a result of legislative torpor. And unwillingness on the part of Congress to use
substantive legislation to better define and police the authority delegated to the executive branch.
When discussing concerns over executive power the Founders
would have distinguished, and did distinguish as I explain in more
detail in my written statement, between three types of inter-branch
disputes. The first type of inter-branch dispute, and by far the least
significant from a separation of power standpoint, arises from disagreement between the Congress and the executive branch over the
terms of a statute that the executive branch is enforcing.
In such cases the issue is not whether the President is acting unconstitutionally, but rather whether the actions of executive branch
officials are consistent or not with whatever directives Congress
has prescribed. Moreover, the Supreme Court has typically afforded
deference to the executive branchs reasonable interpretations of
ambiguities and the statutes it is tasked with enforcing, even if the
courts or the current Congress, might read the same text differently.
The second type of inter-branch dispute involves cases in which
the executive branch claims a Constitutional authority to act in the
face of Congressional silence, as Justice Jackson explained in his
celebrated concurring opinion in the Steel Seizure case. In such circumstances where no statute either authorizes or specifically limits
the Presidents authority, Congressional inertia, indifference, or
quiescence may sometimes, at least as a practical matter, enable
if not invite measures on independent Presidential responsibility.
The third type of dispute, which poses the gravest threat to the
separation of powers, involves circumstances in which the President claims the authority to act in defiance of statutory limits on
his authority because, in his view, such statutes unconstitutionally
infringe upon his Constitutional powers.
As Justice Jackson put it in the Steel seizure case, Presidential
claim to a power at one so conclusive and preclusive must be scrutinized, excuse me, scrutinized with caution, for what is at stake
is the equilibrium established by our Constitutional system.
I offer this taxonomy to underscore three points that I believe are
central to todays hearing, and to the broader work of this Task
Force. First, in my view most of the areas in which President
Obama has been criticized for overreaching fall into the first of
these categories and, therefore, reduced to good faith disputes over
statutory interpretation and not over the scope of the Presidents
Constitutional powers.
As a case in point consider the current debate over the Presidents legal authority to use military force against ISIL. The

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Obama administration has maintained since September of 2014
that apart from isolated and limited acts of self-defense, its general
authority to use such force derives not from Article 2 of the Constitution, but from the AUMF. Even though that statute, one, says
nothing at all about ISIL and, two, only authorizes force against
groups that were responsible for or assisted in the attacks of 9/11,
which occurred before ISIL even existed.
Some agree with the Obama administrations legal reasoning,
others do not. But even if the executive branch is incorrect in its
interpretation of the AUMF, all that would mean is that the executive branch is mistaken in its reading of a statute, not that it is
willfully abusing its inherent Constitutional authority. This is exactly why many, including President Obama himself, have repeatedly called upon this Congress to pass a new AUMF for ISIL. Not
because they are convinced that the executive branch is acting unlawfully in using force under the 2001 AUMF, but because such a
statute would reassert Congress institutional role in war making,
and would set the parameters for the current armed conflict whether or not the President already has statutory authority for the actions he is undertaking.
Second, President Obama has not been nearly as aggressive in
claiming the kind of indefeasible executive power that was routinely invoked during the Bush administration. The authority to ignore statutes that, among other things, prohibited torture, limited
the governments power to conduct warrantless surveillance, required statutory authorization for the detention of U.S. citizens as
enemy combatants, and so on. A common refrain during the Bush
administration was that statutes Congress enacted to limit the
Presidents power were unconstitutional. We have heard far, far
less of that argument from the White House over the past 7 years
and, in my view, for good reason.
Third, and perhaps most importantly, unlike with respect to
claims of indefeasible power concerns that the President is overreaching in either of the first two categories I have described can
easily be ameliorated through new legislation clarifying the scope
of an existing delegation, or circumscribing the Presidents power
to act in the absence of statutory authority. In Federalist 51, James
Madison famously explained that for our system of separated powers to function ambition must be made to counteract ambition. I
could not agree more. But to date the 114th Congress has enacted
126 public laws, fewer than half the total of what was previously
the most unproductive Congress in American history, the 112th,
which passed 283. By contrast the 80th Congress, which President
Truman famously derided as the Do Nothing Congress, enacted
906 public laws.
Reasonable minds can and will surely will disagree about the
merits of President Obamas policy ambitions and statutory interpretations, in these areas and others. What cannot be said is that
this Congress has been uniquely reluctant to counteract or otherwise mitigate those ambitions through substantive legislation.
What this underscores, in my view, is that any contemporary
drift from the historical balance between the branches has been at
least as much a result of Congressional inability or unwillingness
to do the hard work of legislation as it has been the result of Presi-

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dential aggressiveness, and has already made solution not in hearings like this one, but in new substantive legislation that would
more directly vindicate Congress institutional and Constitutional
role.
Thank you for your time and I look forward to your questions.
[The prepared statement of Mr. Vladeck follows:]

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Mr. KING. Thank you for your testimony, Mr. Vladeck. I thank
all the witnesses for your testimony. We will now proceed under
the 5-minute rule with questions. And I will begin and direct my
first question to Mr. Spalding.
Mr. Spalding, I noticed in your testimony that you referenced the
1688 Glorious Revolution and the establishment of a legislative supremacy over the monarch. Could you elaborate on that if that is
the foundation by which our Founding Fathers looked to when they
wrote Article 1 in the Constitution?
Mr. SPALDING. Thank you for the question. The importance of the
Glorious Revolution to the American Revolution is high. The long
establishment of the rule of law through British Constitution culminates in the Glorious Revolution, which could only go so far. It
established legislative supremacy. Having said that that legislative
supremacy used by Parliament against the Americans of the colonies was objectionable to them.
The American Founders perfected this question by constructing
a Constitution of three coequal branch, the legislative being first.
But with the power that we have talked about and the various
checks on it, and the executive and the judiciary to the separation
of power system.
Mr. KING. So in other words, that was what the Founding Fathersone of the things they looked at when they said they need
to have a method to restrain an over exuberant legislative branch
that might have been all powerful. It helped them bring that to the
balance of the three powersbranches of government.
Mr. SPALDING. And they did so by having a written Constitution,
which was the main difference between the Glorious Revolution
and the American Revolution.
Mr. KING. Indeed and thank you. And then so I also wanted to
pose another question to you, Mr. Spalding. And that is that do you
believe that our Founding Fathers imagined that there would be an
executive that would threaten to veto any legislation that did not
include all of his appropriations that he demanded in it? And in
vetoing that legislation would bring about a government shutdown.
What did you imagine our Founding Fathers thought would happen
if an executive took that kind of a step, which we have seen in the
last couple of years frequently?
Mr. SPALDING. Well the first thing to point out is the history of
executive vetoes were to be used rarely; only if there were serious
objections mostly having to do with Constitutional disagreements
with Congress. The President has the right to choose however he
wants to veto. But the idea of using a Constitutional power like the
veto as a way to essentially leverage Congress to pass full budgets,
I do not think they probably could have imagined that. But the
main thing they could not have imagined is the massive shifting
of a power within the separation of powers to the executive branch.
The fact is that that forces the Congress, in addition to its inability to pass its appropriations bills, into massive omnibus bills at
the last moment which, in turn, give the executive massive
amounts of authority to threaten the veto.
Mr. KING. Thank you, Mr. Spalding. I would like to turn then to
Mr. Postell. And your testimony included Article 1 as not set up;
you called it a non-delegation principle in Article 1. So take this

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non-delegation principle to its extreme for us. Does that mean
clawing back a lot of the things that are in the executive branch?
Does that mean clawing back the rulemaking authority? Does that
mean reaching into the EPA and bringing the operations out of
there with the exception of the enforcement and field operations
into the control of Congress? How do you envision this at its, say,
taking it to the logical extreme?
Mr. POSTELL. Yeah, I think that it largely entails some of the
things you are describing, which means not the abolition of any of
these programs, not the abolition of any of these regulations, not
the abolition of any of these agencies; but rather transferring certain authorities that have been given to those agencies back into
the legislative branch.
So, for instance, Congress set up multiple departments and multiple agencies from the very beginning. But those agencies and
those departments were executive or administrative, which meant
they had powers such as investigation, prosecution, and enforcement. But they were not lawmaking entities because that was fundamentally the job of Congress.
So the rules that bind conduct have to be made by the legislative
branch, otherwise we are not in a representative democracy anymore.
Mr. KING. Could a Congress, then, establish enforcement forces
to carry out such actions?
Mr. POSTELL. I think so, yes.
Mr. KING. That would be my conclusion from listening to this. I
wanted to take it to that level because this Committee and this
Task Force, I believe, wants to look at the full breadth of this so
that we can come at what is a reason judgment of the people, and
we want to restore the power to the people in the end.
So I just quickly, Mr. Capretta, the tools that Congress has to
enforce today against an executive branch how long is that list and
what are they?
Mr. CAPRETTA. The tools to restrain executive spending authority
you mean?
Mr. KING. To restrain an executive branch, an over exuberant executive branch, that might be operating outside the Constitution.
Mr. CAPRETTA. Well I think the budgetary powers should be restrained, so I would look at the list of programs that have permanent spending authority now. And some of that has been done by
Congress, mostI mean that has been done by Congress. So I
would not put it necessarily in a Constitutional question. But many
statutes have delegated the spending authority to the Congress.
I think it has just become a pattern and a practice over many,
many years. And it was done originally for programs that had a
benefit associated with it and people wanted some certainty. But
it has gone well beyond that to a lot of discretionary programs that
are now getting mandatory funding, including agencies of government. I would target those first.
Mr. KING. Thank you, Mr. Capretta. My time has expired and
now recognize the gentleman from Tennessee.
Mr. COHEN. Thank you, Mr. Chair. Mr. Spalding, you responded
to the Chairmans question about how you thought the Founding
Fathers would have looked at the President who vetoed a bill be-

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cause he did not agree with all the appropriations. So you can kind
of go back and envision what the Founding Fathers were thinking,
I guess. What do you think the Founding Fathers who had a threefifths clause for slaves in it would have thought about an AfricanAmerican President? Women voting? Or Blacks and Whites eating
together?
Mr. SPALDING. I think you aresorry, I think you are correct in
questioning the ability to envision what the Founders thought. I
think you are absolutely right with that. We constructed it as best
we can. I think the point of the three-fifths clause, given that that
was introduced by abolitionists at the convention, was a move
against slavery, was their intention, and that is what Frederick
Douglas thought. So I think the intention on that one is actually
pretty clear.
I think your point you are getting at, however, is correct which
is that meanings of these things do change, and the Constitution
and the intentions of the Founders should not be so rigid as they
do not allow those changes. But my point is that that is where Congress especially comes in. Congress has the necessary and appropriate clause. Congress has those implied powers to make those adjustments. And it is within the legislative branch where those
things are best solved not, in my opinion, by an executive who is
unitary or a judiciary which makes binary decisions. That is what
lawmaking means.
Mr. COHEN. Not to get off on a tangent but yeah the abolitionists
were for three fifths so that they would not get full population
Mr. SPALDING. The South wanted one for one, which means they
their selves would get more representation in Congress and the establishment object to that.
Mr. COHEN. Both sides took as a given that slavery was something that was appropriate proper and not to be challenged
Mr. SPALDING. That is right. If you read the transcripts of the
convention, including Madisons writings in the Federalist papers,
there was a lot of objection to slavery in the Constitution and the
compromise
Mr. COHEN. But it lost. The compromisethe Constitution did
not outlaw slavery.
Mr. SPALDING. It made compromise with institution but set it on
its road to ultimate extinction, which was Lincolns position. It was
a compromise in principle; that was, Frederick Douglas argues, not
pro-slavery. So now it ensures the historical record is clear.
Mr. COHEN. You in your testimony describe the 1960s and 1970s
as an era which gave birth to big government, because during that
time the Federal Government assumed responsibility of the wellbeing of every American. Can you tell me what you believe the
Framers would have thoughtyou have told us what you thought
about maybe slavery, but what would they have thought about civil
rights legislation that prohibits racial discrimination in public accommodations? And do you think civil rights laws, legislation of
this nature, which the Supreme Court has upheld as a exercise in
congressional powers under the Commerce Clause, comport with
what you contend the Framers views were of limited government?
Mr. SPALDING. I think the crucial point here, again, is that in the
1960s and 70s you sawyou did see a ramping up in change of

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the nature of what government was actually doing as a practical
matter. The content of those things civil rights, environmental law,
education I am not here to debate. I think the Federal Governments being involved in civil rights is a monumental important
move in American government, and in American society that would
have been agreeable to the American Founders, on the same
grounds that I answered my previous question.
But that did change the operational nature of our government.
And it changed it such that it introduced a new form of governing,
which the progressives call the administrative state, which we are
trying to grapple with today. And that changed the nature between
the legislative and executive competition such that I think today
we have an executive with awith having been delegated a lot of
power by Congress, and a large apparatus underneath that executive. Whether they are Republican or Democrat has a lot of leeway
to do things with or without specific congressional legislative authority, using discretion, usinglooking at poorly written laws, and
now seemingly to get away with the ability to directly act against
something that was clearly stated in the law.
Mr. COHEN. The simple fact that we refer to the founders of our
country as they were, as the Founding Fathers, negates over half
of the population because they could have been founding mothers.
But the fathers put the mothers in a second rate class just as they
did Black individuals, just as the people who could not afford to
pay property tax did not own property. The fact is the Constitution,
which has gone on for many years and is a great document, was
not written by infallible human beings. It was written by people
White male property owners who were the elite, who wanted a society that protected their interests, and did it well.
This country has changed much and Jefferson even wrote about
Constitutions should not be seen as never changing. That they
should not be like a child in clothes that the child then grows out
of and needs new clothes. You need to change as the times change.
The process of amending the Constitution is very burdensome, and
sometimes the legislature to see that the society which has evolved
is properly taken care of has to give and delegate to the executive
authority to carry out laws when the Congress is not here and for
the larger government that exists with the difficulties that expire
today.
I yield back my time.
Mr. KING. Thanks gentleman from Tennessee. And recognize the
Chairman of the full Committee from Virginia, Mr. Goodlatte.
Mr. GOODLATTE. Thank you very much, Mr. Chairman. Mr.
Spalding, the issue is not whether or not the Constitution should
not be changed over time, the issue is who changes it and how is
it done, is that not right?
Mr. SPALDING. That is correct. And to go back to this point the
Founders were not infallible but they created a framework, we call
the Constitution in its structure, which has served us well to this
day. It is precisely the responsibility of Congress as the legislative
branch closest to consent and
Mr. GOODLATTE. And Congress
Mr. SPALDING [continuing]. To make those adjustments.

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Mr. GOODLATTE. Right and Congress, by two-thirds votes in the
House and the Senate, passed the 13th Amendment, which ended
slavery; and Congress by two-thirds votes in the House and the
Senate. And, by the way, then going to the states for ratification
by three quarters of the state legislatures in each case extended
the right of citizenship to people who had previously been slaves.
And Congress, by virtue of the 19th Amendment, extended the
right to vote to women, all of which properly should have been
done.
We would probably agree with the gentleman from Tennessee
that these took too long to occur. They were wrong in the first
place. But the Constitution itself was created with a device to make
those changes. Does the Constitution give the President of the
United States the authority to make those changes without the
consent of the people through their elected representatives or without seeking to have the Constitution changed?
Mr. SPALDING. No, absolutely not. Nor does it give that power to
the judiciary. Those two institutions, especially executive, are there
for particular purposes to act in light of legislative action through
the lawmaking process. That is why precisely Congress is the first
branch and it is the primary branch as intended by the Founders.
Mr. GOODLATTE. Is there anything in Professor Vladecks testimony that you would like to respond to?
Mr. SPALDING. Well I think it is interesting the extent to which
there is actually a lot of agreement here in a certain way. The difference being that he thinks it is a good thing whereas I would
probably think it is a bad thing. When the executive does not have
authority he is not free to act as he chooses. There is a lot of ambiguity in the laws how they are written, there isthey are interpretive debates.
But short of that the executives cannot do whatever they want.
I would strongly encourage this Task Force to actually flesh out his
three types of distinctions betweenof executive actions and focusing on those that are the most problematic in here.
Mr. VLADECK. Well, I am in agreement with that.
Mr. GOODLATTE. And point of fact we are always going to have
differences of interpretation of laws, and even of the Constitution
itself between the executive branch, the legislative branch, and the
judicial branch. But what we are about here is recognizing that
over time, for a variety of reasons, the growth of the size of the
Federal bureaucracy, the transfer of power by the Congress to that
bureaucracy by passing laws that contain with them massive regulations, and other actions taken by the Congress, the Congress
powers are diminished.
The Congress is the body of the three most close to the people
because all of us are directly are elected by the people. And the
House very sensitive because every 2 years we are up for re-election. Only two people in the entire multi-million person executive
branch are elected by the people, the President and the Vice President. And no one on the United States Supreme Court is directly
elected by the people.
So the issue before this Task Force is to determine how best to
restore those powers to the United States Congress, not whether
there are not going to be differences of opinion; sure they are. But

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what ways can the Congress assert itself to make sure that when
it recognizes that it passed laws that are being misinterpreted by
a President, that they are able to restore their authority.
Mr. SPALDING. That is why looking at this process, we refer to
it as a separation of powers, is so crucially important, not as a
legal technical matter on this or that specific thing, but as a general matter. This body should act as Constitutional institution in
reclaiming those powers. And that should be true whether it is a
Democratic Congress, a Republican Congress, and a Democratic
President, or a Republican President. If you do not have that back
and forth you have no check, and if you have no check, you have
nothing to prevent the executive or the judiciary from doing as they
wish and going forward.
Mr. GOODLATTE. Let me briefly go to Mr. Postell and Mr.
Capretta and ask you what do you think are the best reforms for
us to consider that would restore the role of Congress as originally
understood?
Mr. POSTELL. Well, I think, as I tried to suggest in my written
and oral testimony, that Congress needs more leadership from
within the Congress in order to ensure that it is not following leadership outside of the Congress.
Mr. GOODLATTE. Mr. Capretta?
Mr. CAPRETTA. I would get a list ofpardon me. I would get a
list of all the programs that have now gotten permanent spending
authority, and especially theoutside the major entitlements,
which I do not think will be changed. And look at those that have
some spending authority that does not require them to come back
to the Congress on a regular basis and review those asto see if
they are appropriately getting that funding or not, and change the
statute and require thosemany of those programs to get annual
funding from the Congress.
Mr. GOODLATTE. Thank you very much. Thank you, Mr. Chairman.
Mr. KING. Gentleman returns his time and the Chair will now
recognize the Ranking Member of the full Committee from Michigan, Mr. Conyers.
Mr. CONYERS. Thank you, Mr. Chairman. Let me ask Professor
Vladeck to respond to some of the responses that we have heard
from your fellow witnesses.
Mr. VLADECK. Sure. I mean, I guess I just have two brief points.
The first is I think you have heard a lot of consensus that the best
solution is legislation. Right, that the best solution to Congress reclaiming its institutional role is for Congress to legislate more often
and more aggressively. And with regard to Chairman Kings point
about the veto, it is worth stressing that President Obama has vetoed nine bills in his tenure. If that keeps up, that will be the fewest by a two-term President since James Monroe.
So, it is not exactly like this is a President who has been over
aggressive in wielding the veto pen. Whether or not we might agree
or disagree about the terms and the reasons for vetoing.
Briefly, on the founding era, sort of understanding the delegation, I think it is a bit of an overstatement to suggest that Congress never delegated power to the President in the early years.

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One of the areas of my expertise is the use of the military. And
if you look at the early statutes regarding the use of the military
in domestic emergencies, they were full of delegations to the President to decide for himself when an emergency had arisen to decide
how best to respond to the emergency. To figure out which forces
to use and let me suggest to the Task Force, this was for a good
reason. At the founding, Congress was out of session for most of
the year, right. Congress was a part-time concern. And so, when,
as in the case of the whiskey rebellion, you had domestic disturbances that arose when Congress was out of session. There has to
be delegations of authority to the President, less to be unable to respond and to protect the public order.
So, Mr. Conyers, I think my basic response is that I think there
is a lot of common cause among the panelists that the real solution
here is legislation. We might disagree about which legislation we
would put first. For example, I might prioritize an AUMF for ISIL
over some of the other bills that my fellow witnesses might
prioritize. But I do not think the history is clearly as against the
current constitutional structure as some of the questions have suggested.
Mr. CONYERS. Let me just ask in your written testimony, you discussed the difference between the feasible and indefeasible executive power. Now, why, in your view is a separation of powers violation based on the misuse of defeasible power less pernicious than
an inappropriate claim of indefeasible power by the executive
branch?
Mr. VLADECK. Sure. I mean, I think that the basic answer for
that is again, the role of Congress. If the President is asserting defeasible power in the way Congress disputes. Congress can pass
legislation to ring it in and the Presidents own theory would require that he defer to the statute. Indefeasible power in contrast
is the Presidents claim over the authority to not be bound by a
statute. In that case, nothing Congress does can move the ball. The
only thing that can happen is the courts could strike it down.
And I think this is what we saw, for example, in the early Supreme Court case I reference in my testimony, Little v. Barreme,
where Chief Justice Marshall went out of his way to say the reason
why a particular naval capture during the Quasi-War with France
was unlawful was because Congress had legislated. Had Congress
not legislated, the President might have had more power.
So, that is why I think there is a lot more concern in an indefeasible case because in that context, the President is effectively disabling Congress from acting, as opposed to just waiting for Congress to act.
Mr. CONYERS. Do any of your three fellow witnesses want to add
to the comments that were made by Professor Vladeck? Both of
you, okay.
Mr. SPALDING. Again, I was struck by the amount of agreement,
but we should see the striking disagreement here. The claim is not
made that Congress cannot, under any circumstances, delegate authority. The question is what amounts of that authority and under
what circumstances. There are clearly differences, but I think the
point is that at some point, which I assert occurs sometime in the
60s or 70s, we have crossed a Rubicon such that the amount of

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delegation across the board in different areas, now with different
agencies giving them their own ability to raise their own money,
has effectively created a circumstance where the lawmaking power
has been delegated over to those in a way that I find objectionable,
both in terms of violation of separation of powers and broadly it is
a violation of the Constitution.
Mr. POSTELL. As Professor Vladeck suggested that the historical
record is not as conclusive as I suggested in my testimony. He
notes the existence of legislation early in American history where
Congress said, When such and such an event occurs, X will happen and the President gets to decide whether the event has occurred.
That is what we call contingent legislation. All legislation is contingent legislation. That is not a delegation of legislative power. It
is a delegation to say, When X happens, then the law is triggered
and the executive gets to act. So, I would not point to those examples as illustrations of legislative delegations of legislative power.
Mr. CONYERS. Could I ask if Professor Vladeck has any closing
comment?
Mr. VLADECK. And I justI dispute the notion that everything
changed in the 1960s. The first major administrative agency was
created by Congress in 1887. That is the Interstate Commerce
Commission. The Federal Government, gets a massively more expansive during the Second World War than modern administrative
state is first upheld by the Supreme Court in 1932. So, I do not
think we can look at the 60s as the moment where things went
off the rails. If we really think that Congress has abdicated its constitutional responsibility by giving all this power to the administrative state, that is perfectly fine, but if that happened, it happened
in 1887 and has been going ever since.
Mr. CONYERS. I thank the Chairman.
Mr. KING. The gentleman yields back the balance of his time.
The Chair would now recognize the gentleman from California, Mr.
Issa.
Mr. ISSA. Thank you, Mr. Chairman. I think I agree with Professor Vladeck. 1887 probably is when the Founding Fathers were
gone and forgotten and we, Congress, deciding that it was a lot of
work and summers were hot here, decided that, Well, what the
heck? Let them do it. We still got the power of the purse.
Since before I came to Congress, I think all but two people on
the dance probablypeople still thought they could shut down the
government by not funding and everything would be taken care because, of course, the executive would capitulate. We know that not
to be true. It is the most impotent power we have, apparently, is
the power of the purse. Proven by the impotency of those who shut
down the government and then panic when, what a surprise, the
government shuts down.
I am going to take a little different tact and Mr. Chairman, I ask
unanimous consent that a sample of the 17 letters I sent on December 13, 2012 be placed on the record. This particular one is addressed to Attorney General Eric Holder.
Mr. KING. Without objection, so ordered.
[The information referred to follows:]

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Mr. ISSA. Thank you. During a different part of my service, my
job was oversight, and overreach, mismanagement, abuse of power
is the primary jurisdiction of Congress through oversight to determine. Now, this particular letter, I will use and I am going to ask
each of you a couple of questions related to it. This one happens
to make a point that there is a rampant problem within the government that government officials at high and not so high level are
failing to comply with the Federal Records Act and circumventing
the requirement that their emails and other communications be
kept under the Federal Records Act.
Now, that includes, Secretary Hillary Clinton, we now know at
an abusive level. She simply had none and left the government
with 100 percent of those documents. It included one of the key figures in Solyndra, a fellow named Jonathan Silver who wrote and
this was included in the letter to the attorney general as an example of something we should be careful about. In his email, he said,
Do not ever send an email on DOE email with a personal email
address. That makes it subpoenable.
In fact, a person who has never been punished, went out of his
way to advise others how to circumvent the oversight of Congress
by eliminating the very existence of the documents that would be
necessary.
Now, December 13, 2012 is interesting only in that I asked 17
Cabinet level officers about the private use of email. One of them
was Secretary Clinton, who, of course, did not answer. And her successor, Secretary Kerry, answered erroneously, not admitting that
obviously his predecessor had used it widely and left with all of
them.
Oddly enough, Eric Holder also did not respond during his tenure and later responded essentially in the negative. We now know
that Eric Holder actually emailed from his personal email, oh,
sorry. Emailwas aware of the personal emails, but in his case,
another part of this was, I asked if you were using any pseudonyms
because that also had been a tendency over at EPA and he did not
mention that he used Kareem Abdul Jabbars true name as his
false email. Damned if know. There you go, thank you, John.
So, my question to each of you and I am going to get to professor
too is, since the Congress appears not to have the tools to hold
them accountable, is not the most important thing we do to build
the tools to hold these executive branch officials accountable up to
and including the ability to get a quick redress in the courts.
And I will close with this and then I want each of your answers,
Brian Terry was murdered in Arizona in 2010. In January 2011,
this Congress was lied to about the Fast and the Furious. As of
today, we are still in the court. Have not even gotten to appeal the
judges ruling to get the documents related to it. It that acceptable
and should not this Committees primary remedy for this to get an
expedited ability to get to the courts, so that if, in fact, Professor
Vladeck is right, and these are just misunderstandings and disagreement, that, in fact, they can be arbitrated fairly. Mr. Spalding?
Mr. SPALDING. Thank you, Mr. Issa. I agree with your overall
point about rebuilding the tools. And I also agree with your point
about the subpoena power and being able to get a quick decision

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from the judiciary. I think you are right about that, so yes, but I
would say as a general matter, I do not think Congress powers to
purse are impotent. I think there are some great possibilities.
So, I would include in terms of rebuilding the tools also, rebuilding your day-to-day tools, which is going to give you control over
the executive, so that you do oversight before, in the early writing
of legislation. That will make your oversight later much easier. Mr.
Postell, quickly because I did kind of use all the time.
Mr. KING. Okay, Mr. Capretta.
Mr. CAPRETTA. I would just agree with Matthew on the power of
the purse that done rightif it is just all or nothing. If you just
try to shut down the entire Federal Government, of course, that becomes a cataclysm, but I think if the Congress starts to reassert
its role in limits on individual appropriations across the board and
reassert that in the appropriations process, agency-by-agency, program-by-program, so that those programs do not have as much discretion and they have to come back to the Congress more regularly,
you will get more control.
Mr. VLADECK. I will just say very briefly, I am a big fan of Judge
Bates 2008 ruling in House Committee of the Judiciary v. Miers,
which I
Mr. KING. So am I. As a matter of fact, I hope Mr. Conyers is
still a fan of that since it was in his favor.
Mr. VLADECK. But just to be clear, just to amplify briefly, if I
may. I think the reason why that opinion makes so much sense is
because at that point litigation had become the last tool to avoid
potentially holding a member of the executive branch in contempt
unnecessarily, and so I think there are remedies that can be exhausted within this body before resorting to the courts and this is
exactly what Judge Bates understood in that ruling.
Mr. ISSA. Mr. Conyers, I know my time is expired, but is that
your recollection that you went to court rather than holding someone in contempt? Was it not that you held them in contempt and
that gave you the ability to go to the court. I just want to make
sure we make the record straight and that was your action.
Mr. CONYERS. I believe that is correct.
Mr. ISSA. Thank you, thank you Mr.
Mr. CONYERS. Can we hear Mr.Professor Vladecks comments
on that because he was vigorously shaking his head.
Mr. KING. The gentlemans time has expired, however the Chair
would recognize the gentleman from New York for his 5 minutes.
Mr. ISSA. Before that we hear Professor Vladecks comments on
that last thing too. Of course, Mr. Chairman.
Mr. VLADECK. All I would say is if I recall correctly, the posture
of that case was a declaratory judgment action by the Judiciary
Committee to litigate Ms. Miers claim of executive privilege in anticipation of whether she could be held in contempt. So, we had not
yet been held in contempt when the declaratory judgment action
was brought.
Mr. KING. The gentlemans time has now finally expired and we
recognize the gentleman from New York for his 5 minutes.
Mr. NADLER. Thank you. I appreciate that clarification. Let me
ask first, Professoroh, what is it? Capretta. You testify about
Congress permanent appropriate to things like Social Security and

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Medicare and various other things. This is a bad thing because we
give up our power.
Now my first question was, so in other words, you think we
should abolish Social Security and Medicare and Medicaid. But
then you said, No, you would not suggest that, but we ought to
bring these programs under control by programmatic limits by additional spending control, et cetera. But what you are saying is
and tell me why I am wrong in this, is that the only way for Congress to avoid what you see as the evil in these permanent appropriations, as you put them, is to put automatic clauses into effect
that would have the effect of cutting Social Security automatically,
or cutting Medicare automatically, unless Congress from time-totime stepped in to change that.
Mr. CAPRETTA. Congress could have a lot of different ways of
going about this. I would start with the list of programs that have
mandatory spending authority goes well beyond the big three,
which I would put Medicare and Medicaid and Social Security into
that category. There are many other programs that have it.
For instance, let me give you an example. There is an administrative agency in the Department of Health and Human Services,
called the Centers for MedicareMedicare and Medicaid Innovation.
Mr. NADLER. Administers to Medicare.
Mr. CAPRETTA. No, this part of HHS does not administer Medicare per se. What they do is run a series of demonstration programs to test new approaches to organizing and paying for medical
care under both Medicare and Medicaid. It is a demonstration part
of the Medicare program and Medicaid as well. It gets a $10 billion
appropriation every 10 years in perpetuity. So, every 10 years, it
is going to get $10 billion automatically from the Treasury and
does not ever have to come back to the Congress again. It is in
the
Mr. NADLER. Except in 10 years.
Mr. CAPRETTA. It continues indefinitely and on a permanent
basis. And then the funding can then be used to test any number
of different things, which they can then take nationwide and implement both Medicare and Medicaid. Really open-ended authority to
change drastically how the program is run. I think it is delegated
way too much authority to this one agency. So, I would
Mr. NADLER. You do not argue that it is unconstitutional, you
argue that it is wrong as a matter of policy.
Mr. CAPRETTA. Right and just for the record, I am not a professor
and I am not a lawyer so, you know, my ability to comment on this
constitutional aspect is very, veryyou can take it as an amateur,
so I am not going to, but I think it is a statutory
Mr. NADLER. Professor Vladeck, we have heard about the impermissiblethe basic subject of the hearing seems to be the impermissible delegation of powers by Congress. Does adherence to separation of powers require that the Congress not delegate rule-making authority to the executive branch? And obviously, can you think
of Supreme Court jurisprudenceany Supreme Court jurisprudence that supports thiswhat I would characterize as an extreme
view of the Constitution?

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Mr. VLADECK. I can, but it is 80-years old. Right, so there was
for a time, a period where the Supreme Court recognized something called the Non-delegation Doctrine that died in 1937. There
was a case a couple of years ago where
Mr. NADLER. Now, is the switch in time that saved nine?
Mr. VLADECK. Among other amendments, it happened in 1937.
There was a case a couple of years ago where the parties tried to
get the Supreme Court to reassert the Non-delegation Doctrine and
the court politely declined. I think partly because it is very hard
to figure out where the line would be if one were to have a judicially enforceable Non-delegation Doctrine between what Congress
may and what Congress may not allow
Mr. NADLER. Let me askthank you. Let me ask Mr. Spalding,
I think. Do you think that as part of this Non-delegation Doctrine,
for instance, Congress has delegated and it has been somewhat
controversial? We have delegated powers to the EPA and we have
said that, Thou shalt prohibit or regulate toxic chemicals in the
air.
Do you think it would be practical or the better practice for Congress to say in each case well, CO2 can be six points per million
and nitrous oxide, seven points per million and when we discover
some new chemical that comes out of manufacturing something
else that may be poisonous, Congress must act on that, the EPA
cannot say that is noxious.
Mr. SPALDING. The point I am making is not that the delegation
argument as understood by the courts, which gave up on it back
in 1930 is somehow to be revived. I think the court should rethink
that. I am making more practical argument when it comes to Congress. Congress is a co-equal branch of government that
Mr. NADLER. Yes, but my question is are you saying thatyou
are saying that we have and not just you, but I mean, the general
political thing here is a lot of people say Congress has delegated
too much power and they have focused in, for example, on the EPA
and others too, my question is, would it be practical or right to require Congress, or even if not right, is it mandated by the Constitution to require Congress to say, Okay, every time a manufacturing
process introduces a new chemical into the atmosphere, Congress
mustit is okay until Congress comes along and says, That chemical cannot be introduced into the atmosphere or that chemical can
only be introduced at six parts per trillion.
Do we have the expertise or could we possibly develop the expertise to do that? Or is there something wrong with saying to the
EPA, You make such determinations. We are telling you generally
keep poisons out of the atmosphere.
Mr. SPALDING. I think the Constitution does mandate Congress
to keep control of the lawmaking process.
Mr. NADLER. And so, your answer is yes.
Mr. SPALDING. And the details of which are to be returned by
Congress as to how far to go.
Mr. NADLER. So, your answer to me is yes.
Mr. SPALDING. If you look at all the places it has done, it has
gone way too far.

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Mr. NADLER. So, your answer to me is yes. Congress would have
to say how muchwhich chemicals and how many parts per trillion are okay in the atmosphere until
Mr. SPALDING. No.
Mr. NADLER. Why not? Where would you go on?
Mr. SPALDING. I think the problem now is that there isthe line
is not, Do not do nothing. You can do everything. The line is
somewhere in the middle and Congress should have done a better
job at determining that.
Mr. NADLER. Okay, so you think we have not done a good enough
job. Last question, Professor Vladeck, Mr. Spalding asserts that
there is no doubt that there is something qualitatively different to
how this President is using and abusing his powers. Do you agree
with his statement that there is something different about the current administrations use of rulemaking authority or exercise of executive authority and if so, can you explain what that something
is?
Mr. KING. The gentlemans time has expired, the witness will be
allowed to answer the question briefly.
Mr. NADLER. Thank you.
Mr. VLADECK. Thank you, Mr. Chairman. All I would say very
briefly is I think that if there is a difference, it is only because of
the paucity of legislation, which has left the President with, I
think, a lot more areas where there is less legislative direction.
Otherwise, I do not think it is a difference in degree or kind.
Mr. NADLER. Thank you.
Mr. KING. Thanks the witness. The gentlemans time has expired. The Chair recognizes the gentleman from Florida, Mr.
DeSantis for his 5 minutes.
Mr. DESANTIS. Thank you, Mr. Chairman. I am listening. I hear
some of the witnesses talking about having three co-equal branches
of government and Ias I look at the Constitution and read, you
know, the Federalist Papers, it seems to me that we have three
separate competing branches of government. I do not know that it
is right to say that the Founders believed that they would be equal.
I mean, for example, Madison said that the legislative authority
would be the predominant branch and Hamilton said, The courts
were by far the weakest of the three branches. And so, Mr. Spalding, am I wrong to say that, you know, we do have, you know, demarcations of legislative, executive and judiciary authority, but
they are competing branches. But the Founders did not necessarily
think the courts would be equal to the legislative power.
Mr. SPALDING. I agree with you. That is right. The distinction I
would make is that when it comes to exercising their constitutional
responsibilities, each branch should carry out its constitutional responsibilities according to its work. So the court does it in terms
of cases of controversy that come before it. The executive does it
in executing the law and Congress, which is the primary branch of
government by intention, must do it by legislating.
So, in that sense, they have different responsibilities and they
compete on those. But all three are taken an oath to uphold the
Constitution and act according to its dictates.
Mr. DESANTIS. And so, I mean, in just looking at how the
branches are exercising authority now in terms ofthere is cer-

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tainly, I do not think anyone could say that they are exercising
equal authority. I mean, I think the executive is by far the most
powerful because you have all the executive powers that are in Article 2 of the Constitution, but then you have mostlymost of the
lawmaking or policymaking is done in the executive branch now.
I mean, is that accurate?
Mr. SPALDING. It is approximate, I would say that is yes. The
Congress has given over many of its broad authority to make laws,
to officers that fall under Article 2 who pass what fall intoare
laws. When you look at the amount of regulations and the extent
of regulations and the effect on most peoples day-to-day lives,
those are the laws. This is why most Americans, when they want
to get regulatory relief, they do not come here as much anymore.
They go to the executive branch. They know where the bread is
buttered in this institution.
Mr. DESANTIS. Or they come to us and ask us to write letters
begging the executive branch to not add that to do. That is an idea
which is probably not the
Mr. SPALDING. I mean, we can argue ad infinitum as to minute
details and judicial points and this, that and the other, but as a
practical matter, I would argue that patent the obvious where laws
are made in this country nowadays.
Mr. DESANTIS. Is there historical precedent we talk about this
particular administration seems to me one of the things they
seemed to have done is go back to statutes that have been on the
books for decades and usher in really significant new policy
changes that have a really significant effect. I mean, across the energy sector, financial services, all these other things. Is that out of
the ordinary or has that been done in modern American history to
that extent?
Mr. SPALDING. I think the Founders recognized very clearly the
ambition would be a driving force in American politics. You can go
back to Richard Nixon who appointed the first czar, right. Presidents will always to try to find ways to get around the laws of Congress. It is not this particular President, although this particular
President has figured out a way to do it actually quite well. And
he is doing it very creatively and it just so happens you have now
a coincidence between the intentions of a bureaucratic body, which
is driving toward a certain policy outcome and executive who actually is in agreement with that. That, coming together, I think is a
new circumstance.
Having said that, a Republican President will come in and will
feel a lot of those same pressures to use those authorities they are
given to assume and go after their policy objectives, which is why
I think Congress, right now, should be thinking all this through in
a sort ofin terms of asserting its authority regardless of who the
next President is.
Mr. DESANTIS. Sometimes the press will report or say, Oh, you
know, in this case we are probably going to assert a claim about
the Obama administration. But he has issued less executive orders
than these other Presidents. I mean, the number of executive actions, is that a good measure to just tell us whether
Mr. SPALDING. I am not sure it is the number going back to the
point about the veto. He has not actually done that many vetoes.

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It is not the number of things. It is the intention and what is being
done with these powers that amounts to essentially driving a legislative agenda without the authority of Congress. That is the violation.
Mr. DESANTIS. I mean, you could do a dozen executive actions before breakfast if they are within Article II or authorized by statute.
Then, that is just a decision the President is making. The issue is,
is there executive authority that goes outside the Article 2 powers,
correct?
Mr. SPALDING. That is correct.
Mr. DESANTIS. Thank you. I yield back. I think I am out, but
whatever is remaining.
Mr. ISSA. For the 10 seconds left, Mr. Conyers, colloquy, do you
recall the vote on the floor of contempt during the issue over firing
the nine U.S. attorneys? My staff has reiterated that there was a
contempt vote on the floor. You might remember that Mr. Boehner
and a number of Republicans walked out during that one.
Does that refresh your memory? It is a small point, but it is one
in which I think it is important that it was not ait was not an
arbitrated Bates decision. They got to Bates because you bought to
the floor a contempt which passed, if you recall.
Mr. CONYERS. Where is this leading?
Mr. ISSA. Well, I would just like the record clear, Professor
Vladeck seems to want to talk about the Bates decision being some
sort of declaratory judgment that was arbitrary. We do not have
the authority to get to the court except through that contempt vote.
That was your means for getting it. And it is extreme and it happened to take very little time compared to other ones, but it did
take some time.
Mr. CONYERS. You agree with that, do you not, Mr. Vladeck?
Mr. VLADECK. What I was trying to suggest perhaps in-artfully
to accomplish my study is just that the lawsuit was a declaratory
judgment action. In the past, when the House had held an individual member in contempt, it was that members, or it was that
persons, or that witness appeal that came rise to judicial review.
In this case, it was
Mr. ISSA. In this case, the U.S. attorney refused to prosecute and
Chairman Conyers then had to go and ask the court to allow him
a civil remedy and it took about a year for Bates to make a decision
that we had that authority. And it was landmarked because it is
the only way that we get any authority right now because we have
no explicit statutory authority, but it was in fact, the hubris of
President George W. Bush, not only saying he could fire them, but
that he would not send Harriet Miers and then when held in contempt, told the U.S. Attorney through the Attorney General not to
comply with an act of Congress.
So, I think it is important when I talk about some impotence of
our authority and the need for more that we admit that even with
the extraordinary issue that Chairman Conyers did, we ultimately
still took more than a year and the case came to a settlement only
because George W. Bush was leaving office and did not want to
leave it to a successor.
Mr. VLADECK. And also

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Mr. KING. The gentleman from Floridas time has expired and he
has departed the room or he would reclaim his time and so, we will
now recognize the gentleman from Georgia, Mr. Johnson, for his 5
minutes.
Mr. JOHNSON. Thank you, Mr. Chairman. Mr. Spalding, is it not
true that the delegation of legislative power to the executive branch
has been effectuated by allowing the use of executive orders by the
President? Would you agree to that?
Mr. SPALDING. In the sense that the delegation have become
more and more complicated?
Mr. JOHNSON. Well, no, I am just saying generally speaking, it
is because Congress has not challenged the use of executive orders
that the use of executive orders has resulted in the delegation of
legislative power to the executive branch. Is that
Mr. SPALDING. Well, there are different ways in which the President can claim authority to issue an executive order as he carries
out the law.
Mr. JOHNSON. I am just talking in terms of executive orders.
That is one of the ways that the legislative branch improperly delegates its authority to the executive branch.
Mr. SPALDING. By delegating more authority to the executive
branch, the executive has more room and more authority to issue
executive orders, yes.
Mr. JOHNSON. And that is what has happened with President
Obama. As you say, this President does it quite well. Is that correct?
Mr. SPALDING. In some cases, when he is given legislation that
allows for broad interpretations or different interpretations easily
enough, that gives him more ability to issue a broader executive
order. The sheet amount of
Mr. JOHNSON. Do you believe that this President has abused the
executive order?
Mr. SPALDING. No, I think the answer is yes, but I would divide
it as in different categories.
Mr. JOHNSON. Let me ask you this then, since you believe the
President has abused his executive order authority if there be any.
Do you happen to know how many executive orders this President
has issued during his 7 years in office?
Mr. SPALDING. Formal number, no.
Mr. JOHNSON. Do you know how many President George Walker
Bush issued during his 8 years?
Mr. SPALDING. I would assume probably as many or more.
Mr. JOHNSON. Why would you assume more?
Mr. SPALDING. Because the way that the executive carries out,
executes the law is by using executive orders. That is how he instructs the body of people under him to do things.
Mr. JOHNSON. So, you believe that George Bush was a greater
abuser of the executive order than President Obama?
Mr. SPALDING. The sheet number of executive orders does not
necessarily equal abuse or non-abuse. It is just the use of it. It is
a legitimate activity of the President to issue an executive order.
Nothing wrong with it per se.
Mr. JOHNSON. Would it surprise you to know that Reagan issued
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Mr. SPALDING. No.
Mr. JOHNSON. It would not surprise you? Why not?
Mr. SPALDING. Especially in a two-term President, they are going
to issue a lot of executive orders. The issuance of an executive
order is a perfectly legitimate activity.
Mr. JOHNSON. Well, now President Obama is a two-term President who has issued fewer executive orders than President Reagan
during his 8 years in. Is that surprising to you?
Mr. SPALDING. No, it is what the executive order covers, what is
looking to
Mr. JOHNSON. Well, let me ask you, what executive orders has
President Obama issued that are far more expansive than those
any of those that say, Ronald Reagan issued?
Mr. SPALDING. I think the question is if an executive order is
issued
Mr. JOHNSON. Can you answer that question?
Mr. SPALDING. I am trying to. I would agree with the professor
at the other end and I would divide it into different categories. I
think when the, you know, some executive orders are very straightforward
Mr. JOHNSON. My time is running out. Let me ask you this question. Do you believe that when President Lincoln issued the executive order on January 1, 1963, that is, excuse me, 1863 known as
the Emancipation Proclamation, was it a user patient of legislative
authority?
Mr. SPALDING. No. Because Lincoln made it very clear he was
acting under his authority during a civil war.
Mr. JOHNSON. How about when H.W. Bush and Reagan issued
executive orders extending amnesty to family members not covered
under the 1986 Immigration Law. Was that a user patient of legislative authority and executive overreach?
Mr. SPALDING. I would have to go back and look at the particulars, but the President does have certain abilities to give legal forgiveness.
Mr. JOHNSON. Well, what I have noticed from you is that Republicans are okay with the use of executive orders, but President
Obama is not and with that I will yield back.
Mr. ISSA. Mr. Chairman, I would ask you to have his consent.
Mr. KING. Without objection.
Mr. ISSA. Well, the unanimous consentunanimous is on putting
in the record from the Cornell Library, a very definitive document
by Josh Chafetz; it is on executive branch contempt of Congress,
which covers the Harriet Miers case.
Mr. KING. Without objection, the documents will be entered into
the record.
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Mr. KING. Thank you, Mr. Issa. The Chair would now recognize
the gentleman from Michigan, Mr. Bishop.
Mr. BISHOP. Thank you Mr. Chair. Thank you to those of you
who have spent the time with us today. Very interesting subject.
I do think I do want to start by building on what my colleague from
Georgia was alluding to with regard to executive orders and ask
Mr. Spalding are executive orders the only way that the executive
can infringe upon the powers of Congress? And so, it really is not
the best judge. The number of executive orders is not the best
judge of whether or not an executive has infringed upon the role
of Congress. There are other ways.
Mr. SPALDING. Yeah, I think if you look at the totality of all of
their actions.
Mr. BISHOP. Yeah, departments, administrative agencies.
Mr. SPALDING. Appointmentshow they deal with their departments, how they conduct their activities, how they exercise and
deal with treatiesall of the above. I think we are in an unusual
situation which we are taking a step back, as I understand it and
looking at this from an institutional point of view. And I think Congress looking at it, both in terms of previous administrations and
this administration. I do not think it is necessarily tied to a Democrat or Republican, in my opinion. There has been over time a rising activity in the executive branch, large in my opinion because
of the amount of authority they have been given to use their capacities. Executive orders being a great example of that, to direct that
bureaucracy for their own political purposes.
On the one hand, that is perfectly natural in a political system.
An executive will do that, but from a separation of powers point of
view, that leads me to conclude that the real law-making authority
that should be controlling those decisions and the executive executing those policies has been moved away from toward a different
form of governing.
Mr. BISHOP. Thank you very much and I would commend you on
this, what I think is the bible of constitutional scholar information
and this book that you wrote, We Still Hold These Truths, is just
an excellent, I think intro into these issues and review of these
issues. So, thank you for doing that. I wantwould like to ask Mr.
Capretta, if I could, Mr. Vladeck suggested that the best solution
to this situation tois to pass a law which would ameliorate the
passing of executive orders or whatever issues are that Congress
could resolve this all by passing a law. Is that practical in todays
world? Do you view that as a solution to what we are seeing today
in the overreach?
Mr. CAPRETTA. I do largely agree with the point, which is that
I think much of the concern that has been expressed this morning
has to do with things that were passed in previous laws. And so,
you are probably going to have to do some of the hard work of
going back into those previous laws and say, Did we go too far in
delegation of some interpretative authority and including spending
authority?
Mr. BISHOP. There are many bills in Congress right now addressing these issues.
Mr. CAPRETTA. Yes.

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Mr. BISHOP. There is a practical problem here in that those laws
have to be signed by the very executive that we are attempting to
address his constitutional authority. I mean, I do not know how we
can get the executive toin states, we have a different state legislation. We have a thing called, the Committee on Administrative
Rules, Joint Committee on Administrative Rules and the role of
that entity is to bring any rules that are promulgated by departments or un-elected bodies to thisin front of this Committee. And
they can decide whether or not it is an appropriate solution.
In Congress, strangely enough, we just do not have that power
to do that. We cannot stop a rule promulgated by a rogue committee or an agency that has decided to go off on a different course.
And frankly, it may not even matter whether or not they are going
in a direction that is good for the environment in which they are
regulating. What can we do in this environment so that we can
capturerecapture that power in Congress?
Mr. CAPRETTA. This is very complicated, but look, if you put everything one big bill at the end of the year with everything all in
it, you lose a lot of leverage because then you will shut down the
government if that one bill goes down and so, I think part of the
problem is to begin to take these on piecemeal, one at a time, in
smaller bites and the President cannotcertainly can veto lots of
things if he wants to, but he cannot veto everything.
And so, you know, Rome was not built in a day and so, you are
going to have to assert your authority one-by-one, issue-by-issue
and win the argument. This program should have a limitation. It
is reasonable to impose one. It is okay to do that. Congress will be
here if you want to get more money, you come back to us. Asking
for that type of authority across the board in a lot of programs, it
is going to be hard to argue against it.
Mr. BISHOP. Thank you. I yield back.
Mr. KING. The gentleman yields back. The Chair will now recognize the gentleman from Florida, Mr. Deutch.
Mr. DEUTCH. Thank you, Mr. Chairman. I want to just go back
and focus on comments that we have heard in various ways
throughout this hearing. The responsibility of Congress to make
adjustments, the leadership of Congress, the role that Congress
plays and I want to just focus on a couple of areas where the President has taken executive action and I have not heard a lot about
it, sobut I thought I would throw it on the table.
When the Senateoh and I learned, Mr. Chairman, I have
learned a couple of things today also, that one, that thethat we
should be grateful for the three branch clause in the Constitution
that it was in fact strongly anti-slavery and respectful of equal
rights of everyone and second, that we do not have three co-equal
branches of government.
And I do not know if my college in central Florida was sending
a message to our current President or this being Super Tuesday
was perhaps sending a message to the leading Republican candidate for President. Time will tell on that. But I have to ask if you
look at immigration, an area where the President has received
from many on this Committee harsh attacks and you go back the
actions in the Senate and the passage of the Rubio Schumer legislation that provided a path to citizenship that made massive in-

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vestments in border security that was the product of compromise
and then you look at what has happened in the House and this
fundamental question when it is the Houses responsibility, Congress responsibility to act.
And you see that in this House and in this Committee in particular, there have been no efforts to craft any sortfirst of all, no
efforts either in this Committee or bi-House leadership to bring up
that bipartisan legislation from the Senate and give us a chance to
debate it, amend it and perhaps address this serious issue.
And so, when the President took hisissued his deferred action
for childhood arrivals, which, of course, was aimed for undocumented immigrants who entered the country before their 16th
birthday and before June 2007 to get this renewal work permit and
exemption from deportation and then that was extended, of course,
when the President expanded that to parents of U.S. citizens and
legal permanent residents. We know that Congress does not authorize enough funds to DHS to deport 11 million people. And it
is a big discussion in our debate.
Again, leading Republican candidate thinks it is exactly what we
ought to do. So, it seems to be catching on. We will have plenty
of time to debate that, but we do not do it. So, of course, there are
going to be decisions made by the executive branch on how to allocate those funds that Congress provides.
And why would it not be within the discretion of the President,
in this case, to allocate those funds in a way, since Congress refuses to act, utterly refuses to act. Why would it not be in the discretion of the President to take action to recognize that perhaps
since we have limited funds that Congress is giving us, why not
use those limited funds to go after criminals and those who pose
a danger to our society, instead of tearing families apart, taking
kids who came here, who know no other country as their home,
other than the United States and deporting them? That is one
issue.
Second issue I would touch on if the issue of guns and gun violence. Now, Congress, I agree has a responsibility to that and I if
I had a nickel for every time in thisin our Judiciary Committee
that we were told that there is no reason to take action because
there are plenty of laws on the books, well, I wouldI think I
would have sufficient funds to address many of the problems that
we face in our society because that is all we hear over and over.
And yet, in this case, you have a law from 1968 that prohibited
anyone other than licensed gun dealers to engage in the business
of dealing firearms, a loophole that we have been trying to close
that Congress has refused to take up.
By the way, as an aside, I point out, refused to take up a single
piece of gun safety legislation since New Town. Despite the ongoing
moments of silence to take place in the House week after week
after week, when there is another mass shooting.
And so, Congress refused to act and the President took executive
action to clarify what the private sale of guns are. And to help close
that loophole and the President did it because Congress failed to
act. I do not understand how that has been characterized as overreach when the fundamental issue here, whether it is on immigration or on guns, or on protecting our environment or a whole host

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of other issues that when Congress, as we have heard over and
over and over this morning has a responsibility to act.
Well, when Congress fails to act and there is a necessity to use
and enforce and interpret existing law and that is what the President does, it strikes me that it is exactly what the President ought
to do. Unfortunately, I am out of time. I yield back.
Mr. KING. The gentlemans time has expired. The hearing, no
question, the Chair would recognize the gentleman from Texas, Mr.
Poe.
Mr. POE. Thank the Chairman. Thank you gentlemen for being
here. It is interesting that my friends on the other side like to use
the same excuse that I heard as a judge down in Texas. I would
have a person come to court charged with theft and occasionally,
they would say, Well, judge, everybody steals in Texas. Give me
a break. And the defense being, Well, other people do it, so let
me go.
And, you know, I am a little a tired of hearing if George Bush
did it, so it is okay for the President to do it. This issue is not
about who does it. It is what position violates the Constitution in
overreach.
Now, we can go all the way back to Andrew Jackson if you want
to. Some historians think that his invasion into Spanish territory
of Florida to kill the Seminoles who were raiding my friend, Mr.
Johnsons now home state of Georgia, that executive action was illegal because the President did not get authority from Congress.
Andrew Jackson also, when Texas was a country, in some states
still is, to Morris, Texas, independent state, in case you are wondering, gentlemen, 180 years. Texas is an independent country,
took Congress forever to decide whether or not to recognize Texas
as a country. Andrew Jackson said, Sure, I recognize them. They
are an independent country. And there was debate about whether
or not that was legal or not.
So, executive overreach has been debated a long time. And in my
opinion, Congress just sits back and lets it happen. All of youyou
probably memorize the Constitution and the way I read it, the Article 1, Section I, the first wordthe first word is all, All legislative
powers are granted shall be vested in Congress of the United
States. It does not say, All legislative powers are granted and
vested in Congress of the United States unless Congress fails to
act, then the President can pass his own legislation.
There is no exception clause. It is the word all. Famers, Madison,
probably had a good reason for putting the first word in the first
article, all, all legislative power. The question has been Congress
sometimes does not use its authority. Does that give the President
the authority to say, Okay, I am going to make my own rules?
Probably not.
I mean, historically, the way I understand the Constitution was
written, Article 1 deals with the legislative branch of government
because it was supposed to be the most powerful. Then Article 2
deals with the executive branch and the Article 3 deals with the
judiciary, which was really supposed to be the weakest branch of
government.
I think as a practical matter today, in 2016 the judiciary is the
strongest branch of government because they make laws too. And

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then you got the President and you got the legislative branch,
which basically is very weak because we do not do a lot.
And we have brought some of this on ourselves because when the
lawmaking authority comes around, we decide to make some bureaucracy to enforce that law. Some of those bureaucracies are legislative. Some of those are done by the administration. We tell
them to go out and make that law happen and then we criticize
the bureaucrats for doing the job that we told them to do because
we will not do it.
So, I say all that to say, is thisdo you agree, Mr. Postell, I will
ask you this question, do you agree or not? Failure of Congress to
act and failure to act really is an action. Failure to deal with gun
violence is an action by Congress. They have made their decision.
We have made our decision. But is there an exception clause in the
Constitution that gives the executive the right to go ahead and go
it his way. Like Burger King, have it your way because those legislators, those Members of Congress, they do not act.
Mr. POSTELL. There is nothing in Article 2 of the Constitution
that gives the President the power to make law and that is because
of the reasons you have just indicated. Article 1 gives all of the legislative powers to Congress. So, any excuse that relies upon Congress inaction cannot be used to justify the granting of a new
power, the assuming of a new power by the President. So, if Congress does not act, there is no law to execute.
Mr. POE. Even if the action by the President is a good idea.
Mr. POSTELL. Yeah, I think it is important to separate results
and policy from process. And a lot of the comments this morning
in conversation is centered around, if you insist upon this sort of
process, you might jeopardize the kind of results we want. But good
process is important in and of itself. Especially a process that says
we are going to rule ourselves throughout own elected representatives in the legislative branch.
So, regardless of the outcomes we produce, it would be a good
idea to preserve the principle that our elected representatives
makes the law.
Mr. POE. Thank you, Mr. Chairman, I yield back.
Mr. KING. The gentleman yields back and the Chair would now
recognize the gentlelady from California, Ms. Chu.
Ms. CHU. Oh, Professor Vladeck, in your testimony, you state
that some forms of executive action are appropriate when Congress
is silent or vague on the matter. In recent years, has Congress
through its inaction created an environment that necessitates unilateral executive action and can you give us examples that stand
out in your mind?
Mr. VLADECK. Sure. I mean, I think we will probably disagree
among all of us in this room about which are the best cases, but,
you know, I think the ISIL example that I reference in my testimony is actually a very powerful one. When Congress enacted the
UMF in 2001, it did not even know that Al Qaeda was responsible
for the September 11th attack, so it left up to the President to determine who was responsible.
This administration is now claiming that, that statute enacted on
September 14, 2001, somehow covers the use of military force in
countries far afield of Afghanistan, against groups completely

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unconnected to Al Qaeda. And I think that is a very powerful example of where the absence of subsequent legislation has all but
invited both this President and his predecessor to actually take this
pre-existing statute and run with it in ways the original justices of
that statute probably would have been very surprised to see.
Ms. CHU. And under what constitutional authority does the
President to have act in cases such as that?
Mr. VLADECK. Well, in that case, I mean, I think the problem
there is that, that is an issue where the President is arguing that
he has delegate statutory authority. And so, my colleagues who
think that authority cannot be delegated in the first place have a
bit of an easier time because they say, of course, that delegation
was impermissible in the first place.
I, instead, am left to say I do not believe that is a fair reading
of the statute and then it comes down to a disagreement between
me and, for example, administration lawyers about what a particular statute means. That is the kind of disagreement that we see
all the time. It is one that this body could fix very easily by just
passing a new statute.
Ms. CHU. Now, in instances where Congress perceives that the
executive branch is overstepped its authority, what can Congress
do to restore the balance of power?
Mr. VLADECK. Sure, as I say in my testimony, I think in most
of the cases we are talking about, new legislation would do most
of the work. The only time where I do not think legislation would
be effective in scaling back the kinds of Presidential excesses that
some have criticized, is where the President is claiming the authority to defy acts of Congress and to not be bound by acts of Congress.
And frankly, we have seen very little of that argument over the
past 7 years. So, I think in other context, in all of the circumstances, new legislation could do a lot of the work.
Ms. CHU. And how would you respond to the critics that argued
that the President would simply veto any attempts by Congress to
redress executive overreach?
Mr. VLADECK. Sure, I mean I think there are two responses. I
think the first is, this President has not used the veto pen that
often. As I mentioned earlier, he has vetoed the fewest bills of a
two-term President since James Monroe, so in 200 years, but second, if there came a point where the President was using his veto
powers in a way that was not just to achieve partisan policy outcomes, but actually was jeopardizing the institutional role of Congress, it would be my fervent hope that Members across the aisle
and form a super-majority to override the veto, there is a long history in this country of Congress overriding vetoes on areas where
I believe the President was acting unconstitutionally.
Ms. CHU. Now, there are witnesses that argue that by creating
a permanent appropriations for programs such as Social Security,
Medicare and Medicaid, Congress has seated too much power to the
executive branch. What are the benefits of creating permanent appropriations for certain safety net programs like these?
Mr. VLADECK. Sure and I think there are a number of benefits.
I think first and foremost, it provides stability to those programs.
That they are not dependent on the annual budget process in ways

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that I think other programs are often held up in the balance at the
last minute.
Second, I think it allows Congress to actually not spend so much
time in the nitty-gritty of whether X amount of money should be
appropriated for Y medical procedure under Medicare, for example.
You know, so I think the time it frees from Congress, the stability
it creates for the program, the ability to allow the executive branch
to use its expertise to figure out how best to implement these programs, I think are all benefits of such standing appropriations.
Ms. CHU. Many of our witnesses are arguing that the Constitution precludes Congress from delegating its rulemaking authority
to the executive branch to carry out the will of Congress. Is it unconstitutional for Congress to ask obtaining assistance from the
other branches to execute Congress will? If so, what are the examples?
Mr. VLADECK. I mean, frankly, I think this is where some of the
other witnesses might differ. I do not think the Constitution includes a non-delegation principle and I think I am with the Supreme Court which has not recognized one since 1936. So, you
know, I think Congress cannot arrogate the power of the other
branches.
Congress cannot commandeer the other branches, but do far as
this is a cooperative enterprise, I do think Congress has a role, a
very powerful role that I think it has just stopped exercising as frequently in involving the other branches, especially the executive
branch in the implementation of Federal policy.
Ms. CHU. And what is the standard that Congress must follow
in enlisting the executive branchs assistance?
Ms. VLADECK. I mean, the basic rule of the Supreme Court as
given, as long as there is any intelligible principle to govern the
delegation. So, as long as there is some reasoned basis on which
the executive branch is exercising the power delegated to it, that
is somehow related to the underlying statute is permissible. You
know, we can sit around and debate whether there should be a
stronger connection, whether there should be a more tighter rule.
I guess, you know, insofar as our differences are primarily about
policy, I do not think that rises to the level of a separation of powers problem.
Ms. CHU. Thank you. I yield back.
Mr. KING. The gentleladys time has expired. The Chair recognizes the gentleman from California, Mr. Peters.
Mr. PETERS. Thank you, Mr. Chairman. I appreciate the hearing
and the chance to hear from the witnesses. It has been very illuminating. And what struck me in all the testimony that there was
an agreement that this is really not a Task Force on Executive
Overreach as much as it is on legislative under-reach. As every single one of the witnesses agrees that Congress could, if we decided
to, take a hand and correct this imbalance.
I heard, you know, legislative tort, inertia, indifference, quiescence, inability, unwillingness, and delegation. These are all things
that Congress is responsible for doing and we can do. So, at the
conclusion of this hearing, I am left with the impression that probably what we should do is get back to work on legislation. Legisla-

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tion from the House of Representatives with which the Senate
would agreement the President might sign.
We have not taken up the authorization for use of military force.
There was a lot of human cry about whether President Obama
should have the power to take care of this. I am willing to take
that up. The Congress has not been willing to take about it. We
had an immigration reform bill in the Senate in 2013, which got
69 votes.
Immigration is one of the areas in which the President has been
active and has been criticized for being so active. But we did not
even get a vote on that in the House of Representatives. That was
a bipartisan immigration bill. We could have taken that up right
here, maybe amended it, but we were prevented from that vote on
the House floor.
There is a regulatory reform provision that came through the
House. It has no chance of passing thisthrough thisthe Presidents signature. I got an idea that we could achieve some of the
same objectives with the Presidents cooperation. Tax reform is
something in which actually, I agree with many of my Republican
colleagues on some of the tax policy issues.
Chairman Camp, when he was Chairman of Ways and Means
issued a plan to start working on that. Speaker Boehner killed it
the next day. So, we are not going to talk about it. Really, what
we have here is, as a witness has suggested, is a failure of Congress, not something to criticize President Obama about. And, you
know, sometimes, I think it is a little bit like me asking myself,
Why is my hair not combed? It is because I did not comb it. We
have all the power we need to take care of this.
Mr. Capretta said on the issues on entitlement spending or social
insurance that we should take those statutes and amend them.
And that is something we have the power to do. I think Mr. Postell
said, What we needed is more leadership within Congress. Well,
I am ready for that and I think what we could do probably rather
than have hearings about what Congress is not doing, we should
just get about the business of doing Congressional work and with
that I yield back.
Mr. KING. The gentleman yields back. This concludes todays
hearing. Thanks to all of our witnesses for attending. Without objection, all Members will have 5 legislative days to submit additional written questions for the witnesses or additional materials
for the record.
I thank the witnesses and I thank the Members of the audience.
This hearing is adjourned.
[Whereupon, at 12 p.m., the Task Force was adjourned.]