Faithful Execution of the Law Act of 2014

Floor Speech

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Mr. COHEN. I yield myself such time as I may consume.

Madam Speaker, more of the same. As with our consideration of the ``ENFORCE Act,'' H.R. 4138, I must note the lack of deliberative process pertaining to consideration of this bill.

The gentleman from South Carolina spoke eloquently on the other bill and talked about the need for process--the importance of process. Process can be important, but process was not important on this bill.

It wasn't important in the other bill. Like that other bill, the Judiciary Committee failed to hold a single legislative hearing.

The process is you have a hearing. People come in and talk--experts--then you have a markup. You first start at the subcommittee. The subcommittee has a hearing, and they have a markup, and then you have a hearing and a markup in the full committee.

This one, not a hearing in the subcommittee, not a markup in the subcommittee, not a hearing in the committee; simply, all of a sudden--presto--markup, process nixed. That is how we came up with the last bill and this bill.

When coupled with the fact that my colleagues on the other side of the aisle provided only the minimum notice regarding this bill, it is hard to believe that this is a serious attempt to legislate because it tramples on the legislative process, the rights of the minority to have notice, the rights of the public to have notice, and the right to have a hearing with experts testifying.

Unfortunately, the end product evidences what happens when you don't follow regular order, which is due process, notice, and a hearing. We do the same thing here.

Here are just a few of the problems with this bill: H.R. 3973 would impose burdensome and wasteful requirements on the Justice Department to the detriment of its law enforcement functions. They would probably have to hire new personnel and increase the debt, which, of course, the other side always talks about being passed on to the next generation.

Section 530D of title 28 of the United States Code already requires the Attorney General to report to Congress any instance in which the Attorney General or any Justice Department official establishes or implements a formal or informal policy against enforcing, applying, or administering a provision of Federal law on the grounds that such provision is unconstitutional, and there are 94 U.S. attorneys and a whole bunch of agency heads and a whole bunch of cabinet members and folks.

Current law, therefore, allows an administration to refuse to enforce a law in the extremely limited circumstance where law is deemed unconstitutional. No other reason is sufficient.

H.R. 3973 fails to define exactly which individuals in the Federal Government would qualify as a ``Federal officer.'' There is nowhere in the USCA that I have seen--and we have researched it--where this Congress has defined a Federal officer, and yet we are instructing Federal officers.

Now, the courts might have had some gibberish, but this Congress never did.

As a result of this oversight, the Attorney General would have to review enforcement decisions by hundreds--if not thousands--of individuals who work in the executive branch and may qualify as officers in order to determine whether their decisions trigger the requirements in this bill. This burden would drain already limited resources in the Justice Department for its law enforcement responsibilities, which is its charge.

The majority's real purpose of H.R. 3973 is to prevent the President's implementation of duly enacted legislative initiatives that they oppose and to stymie the President's discretion in enforcement of those laws.

Allowing flexibility in the implementation of a new program, even where the statute mandates a specific deadline, is neither unusual nor a constitutional violation. And it has happened with administration to administration to administration.

Such flexibility is inherent in the President's duty to ``take care'' that he ``faithfully'' execute the laws. And the exercise of enforcement discretion is a traditional power of the Executive.

Not surprisingly, the Supreme Court has consistently held that the exercise of such discretion is a function of the President's powers under the Take Care Clause, and this was reiterated by the Court as recently as 2012 in Arizona v. United States. This is particularly true if the bill's proponents intend to reach decisions like the deferred action on removing DREAMers from the country. That decision was a routine exercise of enforcement discretion, but H.R. 3973 would require the Attorney General to report on every such routine decision to Congress. You can't enforce every law to the fullest, and prosecutors and people make decisions on which are the most important and which are prioritized.

Professor Christopher Schroeder, the minority witness on the Judiciary Committee, noted that the number of such enforcement decisions is simply too numerous to count.

Given the foregoing, I must reiterate that this process is a waste of our time, especially when there are other far more pressing concerns to address.

How many times have we had people call us and tell us that they need unemployment compensation, that they don't have money to buy goods, to buy food for their child, to buy food for themselves, or to provide shelter? And yet unemployment insurance has lapsed.

How many times do we have people say they want to work and get a job, but we haven't passed an infrastructure bill. That is usually a bipartisan measure. For years, it has been bipartisan. Mr. Bill Young worked well on these bills getting things done. We don't have infrastructure bills to keep us going and deliver goods and services and put people to work.

How many times have people come up and talked to us about their concerns about health care, when we could be maybe coming together and finding ways to make health care even more affordable? The Affordable Care Act was a beginning, giving a lot of people health care they otherwise didn't have. In my district, the differential between African American women and White women in morbidity on breast cancer is the greatest it is in the country. And throughout the country, African American women are more likely to die of breast cancer than Caucasian.

Why is that?

It is not in their genes. No, Madam Speaker, it is not in their genes. It is because they have not had access to insurance and health facilities to get mammograms, to get checkups, and to get treated. They don't have the ability to get to those health centers which have been funded through the Affordable Care Act, more and more community health centers because of the Affordable Care Act, and to get insurance, which they are getting insurance. But in the past they haven't gotten it, their morbidity rate is greater, and they have died. Sometimes it is because they don't have transportation to get to the doctors, and that is because of our limited resources that we put in funding mass transit.

So in so many areas which we have neglected and should be dealing with now on health care issues, on the environment, on immigration, taking people out from the shadows and putting them to work legally where they pay taxes and where young people brought here with their parents made great grades in school, could go to college and stay here, participate and fulfill their dream and fulfill their potential, work hard and play by the rules, we are not doing that.

Instead of using this limited legislative time we have got, this is yet another opportunity to bash immigrants or to rail against giving health insurance to those who would otherwise be without it. We should be addressing these broken systems that we have on immigration, helping struggling homeowners and students buried in debt and fighting discrimination among many other challenges facing our great Nation, allowing people every opportunity to vote rather than taking voting opportunities away from them at every opportunity possible. That is the antithesis of America, trying to deny people the opportunity to vote under the veil of identity.

We are doing a disservice to the American people in choosing to spend our time on these issues which are issues that are not going to pass the Senate and see the light of day--and we know it--instead of trying to come together and work with each other. I have reached out to Members on the other side and said: Why don't we find common ground and pass something? They kind of look at me and say: I get my orders, too. Unfortunately, the orders aren't working for the American people.

Madam Speaker, I reserve the balance of my time.

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