Opening Statement

Statement of the Honorable John Conyers, Jr.
For Floor Debate on H.R. 4138, the “Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law Act”

Wednesday, March 12, 2014

[I yield myself such time as I may consume]

    M. Speaker, the ENFORCE Act, like so many other bills we have considered this Congress, is truly a solution in search of an imaginary problem.

   As was made clear during the two full committee oversight hearings that we held on the Constitution’s Take Care Clause, the president has, in fact, fully met his obligation to faithfully execute the laws.

    So, let us acknowledge what this legislation is really about.  It is simply yet another attempt by the majority to prevent the president from  implementing duly enacted legislative initiatives that they oppose.  Allowing flexibility in the implementation of a new program, even where the statute mandates a specific deadline, is neither unusual nor a constitutional violation.

    It is the reality of administering sometimes complex programs and is part and parcel of the president’s duty to “take care” that he “faithfully” execute laws.  This has been especially true with respect to the Affordable Care Act.  The president’s decision to extend certain compliance dates to help phase-in the act is not a novel tactic.

    And, even though not a single court has ever concluded that reasonable delay in implementing a complex law constitutes a violation of the Take Care Clause, the majority insists there is a constitutional crisis.  Additionally, the exercise of enforcement discretion is a traditional power of the executive.  For example, the decision to defer deportation of young adults who were brought to the United States as children, – the “DREAMers” – is a classic exercise of such discretion.

    H.R. 4138 could also have the perverse effect of preventing the president from taking steps to protect people’s rights.  If H.R. 4138 had been law in 1861, Congress could have sued President Lincoln for issuing the Emancipation Proclamation because Congress could have concluded that President Lincoln had failed to enforce then existing laws protecting the institution of slavery, like the Fugitive Slave Law.

    Likewise, if H.R. 4138 had been law in 1948, Congress could have sued President Truman for issuing Executive Order 9981, which desegregated the armed services, in contravention of then-existing military policy.  And, it is no surprise that 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.  As the Court held in Heckler v. Chaney, “an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion.”

    Even assuming there is a problem to address, H.R. 4138 is itself flawed because it violates fundamental separation of powers principles and may be unconstitutional as applied.  The ENFORCE Act would essentially allow federal courts to second guess decisions by the Executive Branch in a potentially vast range of areas that are committed under the Constitution to the discretion of the political branches like the conduct of foreign affairs.

    Additionally, it is highly unlikely that Congress could satisfy the standing requirements of Article III of the Constitution, which are meant to reinforce the Constitution’s separation-of-powers principles.  To meet those standing requirements, a plaintiff must show that it suffered a concrete and particularized injury.  The kind of injury that would be the subject of a civil action under H.R. 4138, however, would amount only to an alleged violation of a right to have the Administration enforce the law in a particular way.  This diffuse and generalized injury is not sufficiently concrete to meet the constitutional requirement of Article III standing.

    In closing, I want to ask my colleagues when is enough enough?  At what point can we say its time to put away the partisan rhetoric, the demagoguery, and the synthetic scandals and start really working on the issues the American people want solutions to.

    The American people are waiting for us to take action on a host of issues that this House refuses to address - from securing fair pay for a fair day’s work, extending unemployment insurance, and fixing our broken immigration laws.  So let's stop the games and finally get to work.

    I reserve the balance of my time.