During his State of the Union speech, the president of the United States announced that if congress did not move at a speed of his liking he would use executive orders to circumvent congress. He had previously stated that he had “a pen and a phone” and he would use them.
Attorney General Eric Holder was unable to explain to Congress why President Barack Obama was within his constitutional limits when he issued an executive order to delay Obamacare’s employer mandate. The nation’s top law enforcement officer said he hasn’t looked at the analysis in “some time” and thus was unsure of where along the constitutional spectrum the order is permitted.
“I’ll be honest with you, I have not seen — I don’t remember looking at or having seen the analysis in some time, so I’m not sure where along the spectrum that would come,” Holder replied when Sen. Mike Lee, R-Utah, asked him to explain the nature of Obama’s constitutional power to delay the mandate.
The surprising admission came after Sen. Mike Lee (R-Utah) grilled Holder for several minutes on the constitutional limits of executive orders and the executive branch during a Senate hearing on Wednesday.
Lee had based his question on a standard legal test, first described by Supreme Court Justice Robert Jackson, who said the president’s authority to issue executive orders is strongest when he does so with the backing of Congress (category one), more dubious when he issues an order pertaining to a topic on which Congress has not passed a law (category two), and weakest when the executive order is “incompatible with a congressional command” (category three), to use Lee’s paraphrase.
After Holder’s “not sure” answer regarding the employer mandate, Lee asked about the president’s constitutional authority to unilaterally raise the minimum wage for federal contractors.
“Again, without having delved into this without any great degree—“ Holder began.
“But you’re the attorney general, I’m sure he consulted you,” Lee interrupted.
Holder admitted there have been consultations with the Justice Department. He said the minimum wage executive order would probably fall under category one and relates to the president’s ability to regulate things that involve the executive branch.
“I think there’s a constitutional basis for it, and given what the president’s responsibility is in running the executive branch, I think that there is an inherent power there for him to act in the way that he has,” Holder said.
Lee then asked Holder about the president’s decision to unilaterally delay Obamacare’s employer mandate a second time — and he got the same answer.
“I would think that given that we’re talking about a statute passed by Congress that delegates or devolves to the executive branch certain authorities, I would think that you’re probably in category one there as well,” Holder said of the delayed employer mandate, which the text of Obamacare says should have taken effect Jan. 1, 2014. “But, again, I have not looked at the analysis in some time.”
When Holder suggested that Obama had made less use of unilateral executive authority than past presidents, Lee disagreed.
After Lee was done questioning Holder, he proceeded to lecture the attorney general on the importance of ensuring no one person in government is allowed to accumulate too much power.
“This is very, very important,” he said. “It could be very helpful for you to release legal analysis produced by the office of legal counsel or whoever is advising the president on these issues. It’s imperative within our constitutional system that we not allow too much authority to be accumulated in one person.”
“It’s one of the reasons why we have a Constitution, is to protect us against the excessive accumulation of power.”
In response, Holder argued that Obama would never abuse his executive authority and act outside of the Constitution. He also claimed that President Obama has utilized executive orders less than his predecessors.
Lee said looking at the “nature” of Obama’s use of executive orders, it is clear the president has “usurped an extraordinary amount of authority within the executive branch.”
“When you look at the quality, not just the quantity but the quality, the nature of the executive orders that he has issued, he has usurped an extraordinary amount of authority within the executive branch,” Lee countered. “This is not precedented, and I point to the delay — the unilateral delay, lawless delay, in my opinion — of the employer mandate as an example of this. And so, at a minimum, I think he owes us an explanation as to what his legal analysis was.”
A little while before Lee questioned Holder, Rep. Ron DeSantis, R-Fla., introduced a bill that would require the executive branch to explain to Congress the reasoning behind every decision not to enforce a law.
“President Obama has not only failed to uphold several of our nation’s laws, he has vowed to continue to do so in order to enact his unpopular agenda,” DeSantis said in a the press release. “The president assured the public that his administration would be the most transparent in history, and while the president has fallen woefully short on this promise, my bill will be a step in the right direction. The American people deserve to know exactly which laws the Obama administration is refusing to enforce and why.”
The bill is called the Faithful Execution of the Law Act, an allusion to Article II, Section 3 of the Constitution, which obligates the president to “take Care that the Laws be faithfully executed.”
