Opening Statement

Statement of the Honorable John Conyers, Jr.
For the Floor Debate on H.R. 3973, the “Faithful Execution of the Law Act of 2014"

Wednesday, March 12, 2014

[I yield such time as I may consume]

    M. Speaker: As with our consideration of H.R. 4138, the ENFORCE Act, I must note the lack of deliberative process pertaining to the consideration of this bill.

    Like the ENFORCE Act, the Judiciary Committee failed to hold a single legislative hearing on H.R. 3973, the “Faithful Execution of the Law Act of 2014.”  Nor was there a Subcommittee markup.

    When coupled with the fact that my colleagues on the other side of the aisle provided only the minimum notice of regarding this bill, it is hard to believe that the legislative process surrounding H.R. 3973 was a serious attempt to legislate. And, unfortunately, the end product evidences what happens when you do not follow regular order.

    So here a just a few examples of the bill’s numerous flaws.

    To begin with, H.R. 3973 would impose burdensome and wasteful requirements on the Justice Department to the detriment of its law enforcement functions. 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. Current law therefore allows an administration to refuse to enforce a law in the extremely limited circumstance where a law is deemed unconstitutional.  No other reason is sufficient.

    The bill before us today, however, strikes the limiting language “on the grounds that such provision is unconstitutional” and replaces it with a requirement only to “state the grounds for such policy.”

    This override of current law creates a dangerous open-ended invitation for any Administration to refuse to enforce any law for any reason whatsoever. And, this is just one reason why this bill should be rejected. In addition, H.R. 3973 fails to define exactly which individuals in the federal government would qualify as a “federal officer.” 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 bill’s reporting requirement.

    Such a burden would drain the already-limited enforcement resources that the Justice Department has to fulfill its law enforcement mission.

    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 enforcing 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. Such flexibility is inherent to the president’s duty to “take care” that he “faithfully” execute 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 principle was reiterated by the Court as recently as 2012 in its Arizona v. United States decision.

    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.

    As Professor Christopher Schroeder, the minority witness from the Judiciary Committee’s hearing on this issue two weeks ago, noted, 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 time, especially when there are other far more pressing concerns to address.

    Instead of using limited legislative time as 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 our broken immigration system, helping struggling homeowners and students buried in debt, and fighting discrimination, among many other critical challenges facing our great nation.

    We are doing a tremendous disservice to the American people in choosing to spend our time in this manner.

    I reserve the balance of my time.