Attorney General Eric Holder couldn’t explain the constitutional basis for executive orders such as President Obama’s delay of the employer mandate because he hasn’t read the legal analysis — or at least, hasn’t seen it in a long time.
“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.
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.
Holder assured Lee that Obama’s team accounts for Jackson’s three-part analysis, but said he couldn’t use that test to explain in any detail what kind of authority the president wielded when he delayed the employer mandate.
“I’ve not had a chance to look at, you know, for some time, exactly what the analysis was there, so I’m not sure that I would be able to put it in what category,” Holder told Lee. He believes that Obama “is probably at the height of his constitutional power” in issuing an executive order to raise the minimum wage for workers who do business with the federal government, though, and concluded that the same is true for the employer mandate delay.
“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.”
More at the Washington Examiner
Here’s a full list and links to the text of all executive orders issued by Barack Obama, if anyone is curious or would like to reality check the accuracy of any claims. There have been a total of 168 of them, through January 17, 2014. That’s quite a low count compared with many past presidents, as the chart prepared by The American Presidency Project indicates.
The Chief Executive is charged with putting into effect legislation that has been passed by Congress and signed into law. This is not instantaneously accomplished by waving a magic wand and having all things come into full compliance with a law’s intention by uttering a command that the universe Make it so. Often the full intentions must be realized through a series of incremental steps, with appropriate fine tuning and course corrections all along the way. If reality were otherwise, there would be no need for a Chief Executive empowered to make executive decisions.
If republicans think something unconstitutional is going on, there’s a mechanism designed to deal with it. It’s called the Judicial Branch. They’re not actually doing that, because there’s not actually any substance to their accusations. What they’re doing is making hyperbolic claims in an effort to sway public opinion.
That’s pretty much the only thing they’ve been doing lately. Obama took note of that in the SOTU address last night. Forty totally pointless House votes to repeal the Affordable Care. They could have talked about and proposed genuinely constructive changes, but they haven’t.
@Greg:
The ACA specifically states that the employer mandate begins on January 1, 2014. It was clear. So, since we all know that you’re a scholar trained in Constitutional law, Greggie, on what basis did the President delay the mandate of a law you leftists claim was enacted legally when you just said that it is his duty to make sure that legislation that is passed, and he signed, is put into force?
Obama does not have the authority to ignore laws he doesn’t like, change laws for political expediency to benefit his party, or to create law.
I will tell you this; Obama will not always be president. The Democrats will not always control the Oval Office. Obama, and Harry Reid, are setting precedent that they are not going to like when the Republicans take control, which they eventually will.
Seems prophetic of Montesquieu, doesn’t it?
@retire05, #2:
What do you not understand about the second sentence in the paragraph, which you seem to have omitted? Do you have difficulty with the idea that things must sometimes be done in steps in order for them to be done at all?
Perhaps this is a difficult concept. Failure to grasp it might explain why House republicans can’t seem to get anything done. It might explain how they can respond to a SOTU address with a “proposal” that consists of nothing but a vague description of wished-for end results, and then think that they’ve actually said something.
From the same article, a bill supporters of the Constitution can get behind, but that Harry Reid will just ignore as he does nearly everything that comes out of the House.:
@Greg:
Not really true. This Communist dictatorship keeps arguing that Congress has no standing to stop the tyrant Chairman. They continually obstruct legal efforts at anything.
@Greg:
Well, great, but then, why don’t you quote the part of the ACA legislation that says if Obama wakes up on a Tuesday and wants to work on implementing the employer mandate section of the bill, he “may” do that? Why don’t you show us, from the language of the bill itself, that Obama and his henchmen have all the time in the world to put into force the requirements of the bill, or that he can just ignore those parts that are politically inconvenient?
And if you don ‘t know the answer, get one of your OFA buddies to give you those sections of the bill. Let’s see just how smart you are.
Oh, well, I don’t expect you to really do that. You see, you progressives never back up your claims with actual data. You are like drive by slanderers. You make claims then run from them like a rabbit being chased by a dog. Why do you think no one takes you seriously? Oh, and while you’re at it, learn the legal difference between “may” and “shall” in legislation.
I don’t know why anyone here continues to dispute the ignorant postings of Greg. He will never admit Obama nor any of his lefty heroes are wrong even though he once said he would. The law was plain about when specific parts of the law would go into effect. If Obama can not accomplish these timelines due to the incompetence of he and his staff, then he needs to go back to the legislature and change the dates. That never happened.
Obama listed many of his go-arounds of Congress back in 2011 as his, ”We Can’t Wait,” campaign.
But when you look at his various executive actions (as he spent all the money on these go-arounds) compared with the reality over time, you learn he squandered money and got nothing for it all.
http://www.whitehouse.gov/economy/jobs/we-cant-wait
For example:
Exports:
http://michaelscomments.files.wordpress.com/2014/01/exportsrealityvsobamajan2014.gif
Manufacturing jobs:
http://michaelscomments.files.wordpress.com/2014/01/manufjobsjan14.gif
Obama isn’t simply ”all talk.”
He uses his executive actions as a way to get tax money to squander on federal employees.
His ”programs,” do not solve any other problems other than placating his own constituents.
@retire05, #7:
I’m not the one making claims. You’re the one making claims. You’re claiming that the President is routinely doing things that are beyond the constitutional powers of the presidency; that he’s constantly doing things that are illegal.
If there were any basis for that claim in reality, republicans would be able to do something about it. Bringing down the Obama administration is apparently the only function of Darrell Issa. It’s his full time preoccupation. Yet—nothing. Just endless repeats of his dog-and-pony-show investigations, all fizzling out at the end when there’s nothing left but the claims he started with, and conflicting perceptions. There never is any real evidence for what they’ve alleged. Mostly what’s established at the end is that they’re worse than useless to an even greater degree than usual. All they want is to return to control and dominance, but they can’t come right out and tell American voters in any detail specifically what they would do that would warrant putting them back in the driver’s seat. They can’t even agree on specific details among themselves.
@Greg:
Blah, blah, blah, blah. That pretty wells sums up your comments, Greggie. How sad it must be that you can’t debate without “Issa this, Issa that.”
Show us where in the Constitution it says that a president has the authority to usurp enacted laws for his own political expediency. He is required, by the Constitution, to carry out law as written and passed.
You’re a sorry voice for the left, Greggie. You side really does need to get people more intelligent/informed than you are.
@retire05, #11:
Show me in the Constitution where it details the administration methodology that any Chief Executive must follow in the course of translating written legislation into actual practice in the real world. Surely you realize that most things in the real world get done through a series of steps.
I believe what I’ve said is factual, and clear enough for anyone of average or above intelligence to understand. Feel free to respond on that level at any time.
@Greg:
Another classic example of leftist dishonesty.
You keep blathering on about the number of executive orders Obama has signed, as if that is something to be concerned about, and drone on like we don’t understand what an executive order is. It isn’t the existence of executive orders, nor their number issued by Obama with which we have issues. Executive orders written for the purpose of executing laws duly passed by the elected legislature are fine within constitutional parameters.
What is NOT acceptable is Obama’s unconstitutional use of executive orders to legislate things that are outside the laws passed by Congress. Executive orders cannot be constitutionally legal when they serve as a de facto line item veto by the president. The most glaring example is, as already mentioned here, the illegal delay – for brazen political purposes related to the 2014 elections – of the obamacare employer mandate.
You know full well the separation of powers was devised to limit the power of the executive to executing laws passed by Congress, not to allow the President to enact his own laws.
That is the problem with Obama’s misuse of the wxecutive order….not how many he has written.
@Pete, #13:
But he hasn’t actually done that. If he had, there would be some basis for House republicans to take meaningful action, rather than just standing there pointing and flapping their lips. Nothing prevents anyone in the House from initiating the process. All it takes to pass an impeachment resolution in the House is a simple majority.
They like it better the way that it is. They can make bogus accusations about anything and everything, without ever having to put the truth of them them to the test. Want a real example of dishonestly? You need look no further than that.
@Greg:
And then it goes to the Senate.
All bets are off if the GOP takes the Senate in November, and it seems the Dems are worried about that as the recent headlines has stated that the players in the DNC are saying “Don’t support House elections. Do all you can to help retain the Senate.”
“With Democrats’ grasp on the Senate increasingly tenuous — and the House all but beyond reach — some top party donors and strategists are moving to do something in the midterm election as painful as it is coldblooded: Admit the House can’t be won and go all in to save the Senate.
Their calculation is uncomplicated. With only so much money to go around in an election year that is tilting the GOP’s way, Democrats need to concentrate resources on preserving the chamber they have now. Losing the Senate, they know, could doom whatever hopes Barack Obama has of salvaging the final years of his presidency.
The triage idea is taking hold in phone conversations among donors and in strategy sessions between party operatives. Even some of the people who have invested the most to get House Minority Leader Nancy Pelosi back into the speaker’s chair are moving in that direction.
“There is no question that Democratic donors are shifting towards the Senate in 2014. They will continue to support Nancy, but everyone agrees that the emphasis is going to be on the Senate,” said Joe Cotchett, a prominent San Francisco trial attorney and friend of Pelosi’s who has donated hundreds of thousands of dollars to Democratic Party candidates and causes. “When you see people like [longtime California Democratic Rep.] George Miller announcing that they are not running again, you know where the money will be going.”
Compliments of Politico.
If republicans were to gain control of the Senate and retain control of the House in 2014, I would expect 2015 to become the year that the GOP totally self-destructs, breaking apart along all of their internal fault lines. They can barely hold it together even when they’re not in a position to actually enact law.
@Greg:
Thanks for admitting that the cluster f*ck that our government has become is due to the Democrats being in control of enacting laws.
Probably the first honest thing you’ve ever said here.
@Greg:
If you could show where in the Constitution Obama is given the power to legislate the delay of the employer mandate despite the fact that the obamacare law deemed passed by Congress clearly states said mandate was to start January 1, 2014, then you might be correct in your dubious claim. When asked that same qjestion, Holder couldn’t answer it either.
Impeaching Obama with the likes of Reid controlling the senate would be pointless, as you well know. And the despicable manner with which you leftists have tried to paint all opposition to Obama’s marxism as based on racism, one can only imagine the caterwauling from the left should the House try such a maneuver. It seems the US will have to suffer through the worst, most criminal administration in our history to learn that when an extreme leftist promises things like “free” health care, one had better think about the actual implications instead of believing in the existence of unicorns and leprechauns.