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U.S. CONSTITUTION’S MANDATE OF THE PRESIDENT TO EXECUTE LAWS UNDER DISCUSSION
by Sharon Rondeau
(Dec. 3, 2013) — Jonathan Turley of the Georgetown School of Law is testifying at 10:48 a.m. EST to a congressional committee on “Presidential Powers and the Constitution.”
Chairman of the House Judiciary Committee Bob Goodlatte (R-VA6) convened the hearing.
Turley told the committee that “an expanding number of federal agencies” have expanded the president’s powers and marginalized Congress “in what was once a tripartite system” of government.
The next speaker, Nicholas Rosenkranz, is also a professor at Georgetown, and said he agreed with much of what Turley had said, citing “Obamacare suspension,” the IRS’s targeting of political enemies, allowing young illegals to remain in the country, and other examples where Obama may not have upheld his constitutional duty.
Rosenkranz said that the president has “discretion” but must faithfully execute federal laws as required by the Constitution. He said that Obama’s suspension of parts of Obamacare “seem like a willful suspension” of the law.
Rosenkranz said that the IRS’s actions is perhaps the most troubling violation of the president’s obligations to take care that the laws be faithfully executed.”
Simon Lazarus of the Constitutional Accountability Center then spoke and said he disagreed with Rosenkranz and Turley. He argued that Obama’s postponing of the employer mandate for a year was a “delay” and not a “refusal to enforce the ACA” (Affordable Care Act).
Lazarus said that George W. Bush’s HHS Secretary had agreed that the employer mandate was “wise.” Lazarus called the protestations over Obama’s unilateral delay as “hyperventilating.” He argued that the Founders had required that the president exercise his duties “in good faith,” which means using “judgment” and “fidelity to all laws.”
The Post & Email has been told by presidential candidate Cody Robert Judy that hearings on Obama’s impeachment will be held in January.
Michael Cannon of The Cato Institute spoke next. He said that Obama has “unilaterally issued blanket waivers” and “rewritten the [ACA] law” which he is “forbidden” to do. He said that Obama’s “wanton abandon” of the law “may undermine the careful and costly planning” conducted by large and small employers and has “more to do with monarchy than a constitutional republic.”
Cannon said he feared that “democracy and freedom” will suffer as “future presidents” will exercise even more power after Obama.
Goodlatte then asked Rosenkranz how Obama’s rewriting of laws affects Congress, to which Rosenkranz replied, “Gridlock is quite a predictable result.” Goodlatte then asked Turley about “the dangers of concentrated power,” to which Turley responded, “The danger is quite severe. The problem with what the president is doing…this Newtonian orbit is a delicate one that is designed to prevent this type of concentration.”
Turley said that expansion of the executive branch has occurred under George W. Bush and Obama.
Goodlatte asked Cannon why he believes that “premium assistance tax credits” break federal law, to which Cannon responded that the statute allows tax credits only if a state establishes a health care insurance exchange. A lawsuit filed in Oklahoma asserts the same.
“Wholesale suspension of law” has occurred under Obama, said Rosenkranz.
“Prosecutorial discretion” was then raised by Goodlatte, referring to allowing illegals to stay. A woman in the audience then stood up and spoke about immigration, refusing to stop after Goodlatte called for order. She and others were then escorted out of the Rayburn Office Building.
Committee ranking member Rep. John Conyers then asked questions of Lazarus, saying, “I’m glad you’re here.”
Lazarus said that a “theory” was raised and “gloated” over by detractors of the Affordable Care Act. “The law’s text does not sabotage” access to health care, Lazarus said. He claimed that Cannon and the others were taking phrases in the law out of context, claiming that federal subsidies should be available to all Americans, regardless of whether or not a state exchange supplies their health plan. Lazarus referred to the other three as “Cannon and his friends.”
Lazarus then said to the other three that their interpretation would allow “Republican governors” to decide that the ACA would would not work. “Having lost politically, the ACA opponents who are clinging to this theory are hoping that the courts will bail them out…I don’t think that the courts are going to do that.”
Conyers then quoted from an “article” in The New Republic, but before speaking was asked if it was an “article” or “op-ed.”
Rep. Lamar Smith then spoke and said that Obama “was trying to make law by executive decree.” He asked if Obama was “suspending” law and the Constitution, to which the three answered in the affirmative.
Smith then asked what could be done, to which Turley said that citizens could go to the courts, but that “you can have violations of the Constitution but no one can raise” issues because of the question of “standing.”
Rosenkranz said that often, this type of problem is solved by “elections” and said that “the electorate” should be paying attention to the hearing.
Many citizens challenged the constitutional question of Obama’s Article II eligibility since 2008 but were told they did not have “standing.” Obama’s eligibility has never been established, and his birth certificate has been declared a forgery by a law enforcement investigation.
Rep. Jerrold Nadler said he is “concerned” about presidential expansion of power “over the last fifty years,” but he said that “the overwhelming hypocrisy” of the discussion today is wrong. “It’s the duty of the president to interpret the law…” to make it work, Nadler said, “in order to make the law work.”
Lazarus claimed that Obama has “discretion” to decide whether or not illegals should be allowed to remain in the country.
Rosenkranz spoke about an op-ed he wrote in The Wall Street Journal and explained that a comparison between Obama and Abraham Lincoln shows that Obama threatened to veto a provision which would have allowed for congressional review of one of his actions.
Rep. Steve Chabot asked Turley about the “hyperventilation” comment made by Lazarus and the different interpretations of executive power. Turley said that “the Framers were students of history, especially [James] Madison.” He compared a monarchy to the powers Obama has claimed he has. “We don’t have to hyperventilate,” Turley said, in order to see the president’s “very dangerous and unstable system,” regardless of who occupies the office.
Rep. Bobby Scott asked Lazarus to answer questions and asked if Obama has the power to “delay provisions when compliance is logistically impossible,” to which Lazarus said that “sparks were flying around the room” and that Obama “did not refuse to enforce a law for policy reasons.”
Lazarus said that “phasing in” laws is done “very, very frequently” because their deadlines cannot be met. “This is just a tempest in a teapot,” Lazarus said. He said that the “individual insurance market” might “implode” if the law is interpreted to mean that subsidies can apply only to state exchanges.
Scott asked Lazarus about “removal proceedings” for illegal aliens, to which Lazarus responded that “President Obama has increased the number of deportations to 400,000 people a year…”
Scott, a Democrat, then asked Lazarus a final question about enforcing DOMA. Lazarus said, “It’s hard to fault the president in the case of DOMA. He concluded with very good reason that there was no reason that could justify DOMA.” Lazarus said that the Supreme Court “vindicated” Obama’s judgment that DOMA is unconstitutional.
Rep. Darrell Issa then asked all the testifiers if they agreed that Pres. Andrew Jackson “had no right to move Americans” from their homes to another location, and all four agreed. He then asked if when Pres. Richard Nixon refused to turn over Watergate tapes was supportable, and they all agreed that the Supreme Court was correct in compelling their production.
Issa then asked how Obama could “assert that the court had no right” to say that a subpoena “should not be complied with.” Issa said that if members of Congress cannot “go to the courts” for redress, “then the imperial presidency is complete.”
Turley responded that “this administration has been very successful on that,” including reinforcement by the U.S. Department of Justice. “We have, in many ways, the perfect storm….if the president can just shift funds without any type of review,” Turley said.
Lazarus then said that “the courts do not have constitutional authority to decide matters that are not cases or controversies.”
Rep. Michele Bachmann, who is not running for re-election, said on Monday that Obama “has rewritten the Constitution for himself as a part of his effort to fundamentally transform the United States of America.”
Rep. Hank Johnson of Georgia then said that the hearing was a “waste of time.” He said that the U.S. has “failed” to pass “comprehensive immigration reform” in response to a protest held on the Capitol steps on Monday by those in favor of such a bill.
Johnson called the current House of Representatives a “do-nothing House.” He said that “46 times” the House has attempted to “kill” Obamacare, but that the bill will provide health care to 32 million people.
He said that Congress has violated its Article I duty to pass a budget.
Johnson then asked Lazarus how “prior administrations” have handled laws which have been difficult to implement. At that time, Lazarus was told that he had one minute to respond. Lazarus said previous administrations had faced “statutory deadlines that cannot be met.”
Rep. Steve King then spoke. He said that Lazarus often spoke of “policy” matters rather than constitutional ones. He asked Lazarus whether or not he believes that the president’s powers are “limited.” After Lazarus began to respond, King clarified by saying, “What if the president declared war…what if…we objected to such a thing and he vetoed our resolution?” “The president doesn’t have the power under the Constitution,” Lazarus responded, adding that it is “a very complicated subject.”
King then said that he believed “many on the committee” believe that Obama has usurped power, including “the power of the purse.” King then asked Cannon, “What, then, finally resolves this? What do the people do?” referring to frustration over “elections.”
Cannon said that “there is a procedure in the Constitution which allows amending the Constitution,” and then King asked why Obama would honor that in light of his disrespect for the Constitution.
“What does America look like in the next 25 years…?” King asked.
Turley responded that he has “great trepidation” over where the nation is headed. “The center of gravity is shifting…there can be no greater danger for individual liberty.” Turley said the balance “has been lost.”
Rosenkranz then said that they should not be shy “in this room” and said, “I’ll say the word ‘impeachment.'”
Lazarus then advised Congress to “use” its “power of the purse,” which he said “is powerful.” “Instead of complaining about [immigration reform],…” to which Rep. Trey Gowdy told Lazarus that his advice was unwanted.
Cannon then said that “there is one last thing to which the people can resort” if the courts and elections do not suffice. “If the people come to believe that the government is no longer constrained by the laws, then neither are they,” Cannon said.
Rep. Tom Marino then addressed himself to Lazarus. He said he left “a lucrative law practice” to come to Congress because of his concern for his children’s and the nation’s future. He said that he found it “interesting” that Lazarus had found that “the intent” of the ACA was stressed rather than “what is in it.” “I’m hearing consistently from my constituents…how this is destroying them,” Marino said. He then quoted from Federalist Paper #51, which referred to too much power in any governmental department. “The government was set up to prevent that,” Marino said, including the Bush administration and others in which the Executive Branch usurped power.
“How many more things do you think have to occur…[to be] enough evidence to start asking questions?” Marino asked after citing the IRS, ACA and other items he sees as usurpation of power.
Lazarus denied that there is “a grotesque” encroachment of executive power on Obama’s part. Marino then responded, “When laws are enacted, they should be followed to the letter.” Marino then said that “94% of the Affordable Care Act is mandatory spending” in response to Lazarus’s contention that Congress could pass legislation to override what it sees as Obama’s overreach.
Rep. Hakeem Jeffries then asked Rosenkranz why he believes that the “Deferred Action” of young illegals is unconstitutional, to which Rosenkranz responded that the Obama regime’s decision has affected “millions.”
Rep. Gowdy then asked if the president can refuse to enforce a law “for policy reasons.” “Can the chief executive fail to enforce categories of law…?” and provided an example of providing two forms of ID to purchase a firearm, to which Lazarus responded, “I’d have to know a little bit more…”
“Can the president suspend election laws?” Gowdy demanded, to which Lazarus said, “No, the president is bound to follow laws…”
Gowdy asked if Eric Holder instructed his prosecutors to leave out drug amounts for mandatory minimums for arrests and penalties. Lazarus said he didn’t know and told Gowdy to ask another testifier. Gowdy then asked, “If you could put them in prison for less time than Congress says, an you do it for more time?” to illustrate prosecutorial discretion.
Gowdy then asked Turley, emphasizing “election laws.”
Turley responded that laws cannot be tailored to a category of people. “What is the remedy for the legislative branch” if the president is ignoring laws, Gowdy asked. Turley claimed that he is seeing “the most serious constitutional crisis in my lifetime” because the Congress is losing its authority.
Rep. Sheila Jackson Lee then spoke and thanked the leaders for holding the hearing. Then she said that the hearing was “a wasteland.” She said that “under the present House leadership, we have passed no legislation…” for “the president” to consider. “If we would simply do our job, the relevance to the American people would exceed their expectations,” she said. She said that she sees the duty of the president to “provide relief” to the people.
Lee said that Congress is “ignoring” the needs of the people.
Rep. Raul Labrador then asked Lazarus what part of the ACA authorizes the federal exchanges to provide a health care subsidy. Lazarus stalled, then quoted a section of the ACA that said “such exchange” and would have “the same authority” as the state exchanges.
Lazarus then stuttered more, after which Labrador addressed Turley because of time constraints. Labrador said he “is very concerned about the imperial presidency” and the lack of checks and balances on the part of Congress on Obama. Turley cautioned that Congress cannot “become a debating society.”
Rep. Luis Gutierrez of Illinois spoke about immigration reform and stated that Obama “should be expanding his prosecutorial discretion.” He said that immigration reform was passed in the House but there were not 60 votes in the Senate. Gutierrez said that “the president does have the ability to prosecute,” referring to young illegals. He said that “there are three of them” working in his legislative office. “They’re citizens in everything except a piece of paper,” Gutierrez said.
No one has seen an authentic “piece of paper” ascertaining that Barack Hussein Obama is a U.S. citizen, as both of his birth certificates and Selective Service registration form have been declared “computer-generated forgeries” by a law enforcement investigation.
Rep. George Holding specifically Rosenkranz asked about impeachment as a remedy to seven “most egregious” overreaches of power, to which Rosenkranz suggested that Congress look for “a pattern” of violations.
During his time, Rep. Blake Farenthold summarized the topics covered: Obamacare, immigration, IRS targeting, and impeachment and asked the testifiers for “a remedy” for “a rogue president.” He asked Turley and Rosenkranz if Congress “has been stripped” of its authority. Turley said yes, and Rosenkranz said that “elections” are the solution. Lazarus objected to the term “rogue president” as it related to Obama, to which Farenthold said that it did not necessarily apply to Obama. Then Lazarus invoked the actions of Richard Nixon.
Cannon revealed that “all the Democrats have left the room,” after which Farenthold said that “a Democrat just walked in.”
Rep. Steve Cohen (D-TN) asked Cannon about his contention about “impeachment,” although Cannon correctly said he did not believe he mentioned it. “But nobody has suggested that, right?” Cohen pressed to silence. “Mr. Cannon…?” Cohen said. Cannon said that “a pattern” of ignoring laws would have to be established and said that Obama is “taxing and borrowing and spending $700 billion that this Congress never authorized.”
Cohen then asked if Bush had committed an impeachable offense by going into Iraq without evidence of weapons of mass destruction.