Today I testified before the House Judiciary Committee on the Constitutionality of DAPA. You can download my testimony here or on Scribd. During the hearing, I was given five minutes for opening remarks. Afterwards, over the next 3 hours, members of both parties peppered the panel with questions. Most of the questions were focused on Professor Stephen Legomsky, the minority witness. It was a very rewarding, and enjoyable experience, and I’m very proud that I could discuss the Constitution, and cite Federalist No. 51 before the House of Representatives. I’ll have some more thoughts on the merits in a subsequent post.
C-SPAN has video of the entire hearing here. I have clipped a few highlights.
Here is my five-minute opening statement. My parents, who travelled from New York for the hearing, got a special shout-out.
Second, I explain that many law professors who support DAPA argue that the DOJ did not go far enough, and they should have offered deferred action to the parents of the Dreamers.
Third, I reiterate the point made in Noel Canning that gridlock does not license the President to transcend the executive powers. I also discuss the Arizona v. United States decision, and stress that Justice Kennedy’s opinion turns on “individualized” discretion.
Fourth, I explain how the Heckler v. Cheney standard closely tracks the Take Care Clause Analysis, and that Judge Hanen showed his hand on how he would rule.
Fifth, my longest exchange of the day was with Rep. Poe (R-TX), who first gave very nice praise to the South Texas College of Law, and Dean Gerald Treece. Then, he asked me what would happen if future Presidents declined to enforce the law. I explained that this is already happening, as the President has delayed Obamacare’s mandates severla times. Poe replied, “When I ask you what time it was, you built me a watch.” I’ll take the compliment, sir.
Sixth, I explained that the *only* examples of DACA denials the DOJ could cite, outside of categorical denials, involved those who were engaged in gang activity, or fraud in previous applications. (You can see my mom sitting behind Prof. Legomsky).
Seventh, I discuss how Congress has acquiesced to much narrower versions of deferred action.
Eighth, my final colloquy with Rep. De Santis focuses on how the Congress can check the Presidency with the power of the purse.
Here are some photos: