Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law Act of 2014

Floor Speech

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Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, my amendment adds a new section to the bill to ensure that the President retains the well-established constitutional authority to exercise prosecutorial discretion when enforcing our laws.

H.R. 4138 would empower either the House or the Senate to file a lawsuit whenever one House disagrees with how the executive branch is implementing a law. The bill applies to enforcement decisions made by any officer or employee of the United States, thus reaching into every decision across hundreds of thousands of ``Federal statutes, rules, regulations, programs, policies, or other laws.''

H.R. 4138 is a practical nightmare. It invites endless costly litigation over policy disagreements that do not raise any legitimate constitutional concerns. We need look no further than the examples cited by the sponsors of this bill to see that this is true.

Far from representing a violation of the Take Care Clause, President Obama's decision to delay--not to refuse--enforcement of various deadlines under the Affordable Care Act are reasonable implementation decisions that are designed to ensure the ultimate success of the President's signature law. Delaying implementation of a complex law is not unusual.

Similarly, the administration's setting of immigration enforcement priorities falls well within its exercise of prosecutorial discretion and raises no legitimate constitutional concern.

The administration's decision to provide temporary relief from removal for certain DREAMers--young adults brought to the United States as children--complies both with Congress' statutory directive to establish national immigration enforcement priorities and within the President's responsibility to exercise prosecutorial discretion under the Take Care Clause of the Constitution.

While my colleagues now seek to drag courts into nonjusticiable political disputes, the fact of the matter is that no court has ever found delay in implementation of a law or the routine exercise of criminal or civil enforcement powers to constitute a violation of the Take Care Clause.

The fact is that courts likely will refuse jurisdiction over lawsuits brought by Congress against a President because H.R. 4138 violates bedrock principles of constitutional law.

The Supreme Court has long recognized that the Take Care Clause vests the President with ``broad'' discretion to determine when, against whom, how, and even whether to prosecute apparent violations of the law.

In Heckler v. Chaney, for example, the Court confirmed this core principle when it recognized that:

An agency's refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the executive branch not to indict--a decision which has long been regarded as the special province of the executive branch, inasmuch as it is the Executive who is charged by the Constitution to ``take care that the laws be faithfully executed.''

The injection of Congress and the courts into decisions that the Constitution squarely commits to the President's discretion raises significant separation of powers concerns. It also lies beyond the purview of the courts to accept any such case under the Supreme Court's political question jurisprudence.

In Baker v. Carr, the Supreme Court made clear that the courts cannot and will not interfere in matters that the Constitution commits to a coordinate branch of government.

My amendment seeks to mitigate H.R. 4138's unconstitutional encroachment into the President's authority to faithfully execute the law by adding a new subsection (d) to ensure that nothing in H.R. 4138 ``limits or otherwise affects the clearly established constitutional authority of the executive branch to exercise prosecutorial discretion.''

My amendment cures one of H.R. 4138's many constitutional infirmities. I urge all of my colleagues to support it.

I reserve the balance of my time.

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