“A FUNCTION OF THE PRESIDENT’S POWER” OR CONSTITUTIONAL VIOLATIONS?

by Sharon Rondeau

(Feb. 26, 2014) — At 10:19 a.m. EST, the House Judiciary Committee has commenced an announced hearing on presidential overreach and allegations that Obama has “unilaterally waived or suspended the laws” according to his own wishes.

Chairman Bob Goodlatte is reading an opening statement as of 10:21 a.m. suggesting possible remedies for executive branch overreach, specifically of the president, to “faithfully execute the laws.”

At 10:22, Goodlatte indicated that there was not “order” in the chamber and warned that the Capitol Police would remove anyone who was disruptive.

Rep. John Conyers then reiterated that people with signs could not become disorderly.

A pause of about two minutes followed.

Goodlatte then resumed reading, stating that the courts must “hear all cases arising under the Constitution,” including those claiming “unconstitutional actions by the executive branch.”

A resolution has been proposed by Rep. Tom Rice (R-SC7) designed to ask the courts to judge whether or not Obama has overstepped his authority on several fronts.  Rice is serving his first term in Congress.

Goodlatte quoted from Federalist #47, which defined “tyranny.”

Conyers spoke again at 10:26.  He indicated that “today’s hearing, which is very similar to the one…on this same problem three months ago…” lacked “any evidence” that Obama has overstepped.

The audio of the hearing is too soft in some places.

Conyers said that the “majority party” is simply attempting to oppose legislation it does not like.  He said that Obama has not committed constitutional violations.  Conyers cited Pres. George W. Bush for “failing to implement” parts of Medicare, Part D, passed under his watch.  Conyers believes that delays in implementing Obamacare are “necessary” for the law to work.

Conyers believes that Obama is using his discretion and that the agencies within the executive branch are doing the same in regard to complaints about his alleged overreach.  Conyers referred to the executive order allowing young illegals to remain in the country, delays in Obamacare implementation, and gave other examples.

At 10:32, Goodlatte announced the four House members who would be testifying, including HR442, Rice’s proposed solution to what he alleges as Obama’s constitutional violations.

At 10:35 a.m., Rep. Jim Gerlach began the testimony by stating that there are several examples of Obama’s “fundamentally altering” the constitutional balance among the three branches of government.  He referenced “the Framers” as having worked “so hard” to design the government so that overreach could be curbed if it arose.

Gerlach reviewed the circumstances under which Articles of Impeachment could be drafted for “high crimes and misdemeanors” on the part of the president or other executive branch officers.

Reading from a text, Gerlach said that the proposed remedy asking the courts to review executive actions is something he believes could work.  Last summer, several members of the House indicated that they believed they had the votes to impeach Obama, but the U.S. Senate, which has a Democrat majority, would likely not vote to convict.

At 10:40, Gerlach finished.

Rep. Rice then was asked for his testimony.  He spoke about his STOP Resolution, which he said would “bring a lawsuit against the president” for his alleged overreach.  Rice cited Obama’s “unilateral decision” to delay Obamacare “multiple” times.  He stated that the impact on businesses is negative and that Obama’s promise of “If you like your plan, you can keep it” was unacceptable.

Surprisingly, C-Span did not cover the hearing on television or online.  No mainstream media company, including Fox, covered it.

At 10:45, Rice encouraged the House to “adopt HR 442” and pass it.

Rep. Diane Black then spoke, citing “lawlessness” of the regime, specifically the hiring of a “public advocate” for illegal aliens, which she said undermines the U.S. Border Control from performing its duties.  Black introduced a bill to defund the position, which passed both chambers of Congress and was signed by Obama.  “After we thought that the matter had been taken care of by an act of Congress approved by the president…we learned that ‘the most transparent administration in history’ had changed” the name of the position “and made no change to the job itself.”

Black said that the regime has “circumvented the will of Congress” to get what it wants.  “This administration and its ICE officials blatantly skirted the law…” she said.

Obama is said to be using fraudulent identification, specifically his Selective Service registration form and long-form birth certificate, but to date, Congress has not taken action.  Questions over his eligibility and life story have arisen since 2007, but the media was reportedly intimidated into silence.  A criminal investigation has revealed that Obama has internet “trolls” who have perhaps sought to sway public opinion, threaten those questioning Obama’s eligibility and documentation, and thereby maintain Obama in office.

Black introduced HR3732 to “force the agency to comply with the law” to defund the position in question and force ICE and the regime to follow the law.  She said that Obama’s lawbreaking “cannot be continued,” stressing that Obama signed the law to make the position defunct, then simply changed its name.

Rep. Ron DeSantis then spoke, citing Article I of the U.S. Constitution, which delegates “all legislative powers” to the Congress. DeSantis said that the fact that some presidents have issued more executive orders than Obama does not mean that Obama is not violating the Constitution.  “The framers did not simply expect courts to simply referee disputes…” he said.  He said that Obama has “usurped” authority not granted to him.

DeSantis added that a Supreme Court case does not allow a president “whether to enforce a statute at all.”  He said that a bill he has introduced calls for scrutiny of the president’s actions.  “The president is not a king…” he said, referencing “the Framers” in their design of the new government.

DeSantis completed the first “panel” of witnesses.

Goodlatte then swore in three professional witnesses, beginning with Prof. Jonathan Turley, who has been widely published and is the “second-most-cited law professor in the country.”  Turley testified in December on the same topic, claiming that Obama’s overreach was unprecedented and a threat to the constitutional system of government.

Each of the legal experts was also given five minutes.

Turley began speaking at 11:00 a.m., referencing his prior testimony on “separation of powers.”

He said that “this problem” did not begin with Obama but is “accelerating” now, which he said he finds “alarming.”

“The fact that I happen to think the president is right on many of these things…means that our system is changing in a very fundamental way…” Turley said.  He said he will also be stating what “this chamber can do” to rein in the executive branch.  Turley referenced the Framers, the “system” they devised, and his claim that “our system is not supposed to change.”

Turley cited James Madison and called the current situation “dysfunctional.”  He said that the Framers had had extreme divisions among them.  He said that the judicial branch was referred to by the Framers as “the most dangerous.”  He said that he found it “strange” that the Supreme Court has not enforced the “Separation of Powers” outlined in the Constitution.  “I believe that your response has to begin before this president leaves office,” Turley said.

“The fact is, we’re stuck with each other…” he said.  “The Framers foresaw such periods…We should not destroy the system that has maintained this country so well…”

Prof. Christopher Schroeder of Duke University Law School then spoke.  He stated that the executive branch has “discretionary authority” and the ability to “not participate” in all aspects of congressional statutes.  He said that executive actions should be “checked” against the statutes to determine if they are “exercises of statutory authority” and “administrative actions.”

Schroeder said that the “deferred action” of former DHS Secretary Janet Napolitano was “quite in line” with the Supreme Court’s ruling on the Arizona immigration laws passed in 2010.  Schroeder said that rather, the executive branch must act in “good faith” to execute the laws and does not believe that Obama has overstepped his authority.

Prof. Elizabeth Price Foley then spoke and said that she had supplied a “road map” for the House to “sue the president” for abusing his power.  Foley said that “members” can claim “an institutional injury,” then an executive action can be “nullified.”  “The law suit should be explicitly authorized by a majority of the House,” Foley said.  “We have to make sure this is not a ‘sore-loser’ lawsuit,” she said, to indicate that there has actually been “an injury.”

Foley said that “the president” cannot decide to “benevolently suspend the law” in regard to health care, immigration, etc.  She said that judicial relief should be available to Congress.  “What Congress wants in this situation is for the existing law to be enforced.” She also said that “peaceful court resolution” is superior to “impeachment.”  “It just wants the president to faithfully execute the law,” Foley said, invoking Marbury v. Madison.

“These are serious constitutional questions,” Foley said, referring to “benevolent suspensions.”

Goodlatte then retook the floor at 11:16 a.m., asking Turley about “the danger” of executive overreach.  Turley referred to James Madison again, stating that the abrogation of Separation of Powers will “threaten liberty.”

Goodlatte then asked Foley about “long-term” effects of benevolent suspensions, to which she responded that “People are going to get very cynical about the Constitution…thinking that law is politics.”  She said that she has law students who already believe that.  “It’s going to render Congress superfluous,” she said.  “Why would go to the trouble of reaching a…political compromise if the president is going to benevolently suspend” the parts of the law he does not like, she posed.  She described some of Obama’s actions as “complete suspension” of the law and urged the House to move forward with its legal action.

Goodlatte then asked Turley about the issue of “standing” and how it pertains to struggles between the legislative and executive branches.  “Member standing would go a long way to resolve some of these conflicts,” Turley said, again referencing “the Framers.”  He said that “the president” cannot make a “unilateral” decision without Congress.

At 11:23, Conyers took the floor and asked Foley about a posting attributed to her dated earlier this month whereby she had allegedly said, “Not even the Congress can sue the president…over unconstitutional actions” as opposed to her statements during her testimony.  “Do you still hold to that position? Conyers asked.  Foley responded, while Conyers interrupted her twice, that she did not assign the title to the article.  “You did say on there that ‘Congress probably doesn’t have standing,’ Conyers said, to which Foley responded that she had written that “most people believe Congress probably doesn’t have standing.”

Conyers then asked Schroeder if “one house of the Congress can successfully establish standing to sue the president…” to which Schroeder said no, unless there is a “cognizable” injury.  He said that members of Congress have “never” had standing to sue the president.

Conyers said that the fact that “the second hearing” is being held about executive overreach when all presidents “exercise discretion” in regard to “faithfully executing the laws,” with which Schroeder agreed.  “This is a very dicey proposition,” Conyers said.  “This is getting out of hand.”

At 11:50 a.m., Rep. Sheila Jackson-Lee expressed incredulity that “a chief executive,” referring to Obama, could not be trusted, as stated in a memo issued by Speaker John Boehner when he decided not to take up “immigration reform.”

Next month, a significant announcement is expected to be issued by the Maricopa County Cold Case Posse in regard to its investigation of the long-form birth certificate image bearing Obama’s name.

Lee addressed herself only to Schroeder, who is politically aligned with her “beliefs.”  Schroeder maintained that Obama has acted within constitutional parameters.  Lee then recited the numbers of executive orders issued by Presidents Clinton, Bush and Obama.

Rep. Bachus then addressed Schroeder, asking if the number of executive orders issued by Clinton was more than Obama’s.  Schroeder said he did not know the numbers, then Foley answered that “it’s the quality” of the executive orders.  Schroeder then gave examples of EOs issued by Eisenhower and JFK.

When Bachus asked Turley, he said, “You can’t look at the raw numbers…I do think that this situation is far worse than the last two presidents…This has accelerated under President Obama to a point that it’s alarming…”

Bachus then asked Schroeder what he thought the worse executive order was, upon which Schroeder cited the EO which George W. Bush issued to authorize NSA wiretapping without a warrant.  When Bachus asked “how long” it would take for the House’s proposed legal action to play out, Schroeder said that it is not practical and was unlikely to be effective.

Foley cited two cases in which the U.S. Supreme Court considered “institutional injury.”  One case had claimed that the Lt. Gov. of Kansas had violated a statute and that the Supreme Court ruled that the “injury requirements of standing” were upheld.  In the other case, Foley said that “a group of six senators were challenging the constitutionality of a line-item veto act.”  She said that the Supreme Court did not uphold “standing” there because the senators were “disgruntled.”

Rep. Gutierrez then spoke and said that “nothing” would come of the hearing and that it evidenced a “do-nothing Congress.”  Sarcastically, he asked why the Republicans are “angry” that Obamacare elements have been delayed because they don’t like the law.  He accused the Republicans of wanting a “do-nothing president to go along with a do-nothing Congress.”

Rep. Darrell Issa asked Gutierrez to yield, to which he first said no, then he yielded for “15 seconds.”  He said that the decision to allow young illegals to stay is done on a “case-by-case basis.”  He decried the Republicans’ invoking of “cloture,” which he said is referenced “in the Constitution.”  He asked why “we are not celebrating what the president did…” in the case of the “dreamers.”  In a highly partisan soliloquy, he claimed that Obama has “detained more people than any president.”  Angrily, he said that there are “hundreds of thousands of children…born here in this very country…afraid of losing their moms and dads.”

“I can show you, time and time again, prosecutorial discretion…saying to then-President Clinton, ‘You’re not using prosecutorial discretion…” at which point, the video was cut off.  A few seconds later, Issa said that Gutierrez had gone over his time limit by 1.5 minutes.

Rep. Darrell Issa then spoke, asking Turley if the term “presidential executive order” was different from policies made through the “regulatory process.”  He asked if laws passed previously “become the basis for all executive action.”

Turley said that he agreed that “it is all executive action.”

Issa then posited that the U.S. Congress “has not formally given itself standing to intervene on a regular basis…when they believed that …the executive branch has failed to interpret existing law.”  “Is that not correct?” Issa asked.  He referenced previous subpoenas under different presidents.  He asked if Congress can “give itself explicit standing” to resolve conflicts referenced in Article III of the Constitution.

“Do you believe we have the ability to pass a statute that would explicitly give us standing?” Issa asked.  Turley answered that he believes Congress can gain standing according to the Constitution.

Issa then referenced the federal judge, Amy Berman Jackson, who ruled that the House has standing to demand that Eric Holder turn over documents, in that case, related to the gunrunning program, Fast & Furious.

Rep. Louis Gohmert referenced the Article I ability of Congress to “create courts” as well as to “eliminate” them.  He asked if courts could be created which would grant Congress “standing.”   Foley responded that immigration and UCMJ courts are not “Article III courts.”  “You could not eliminate the courts,” Foley said, but Gohmert then asked if Congress could “create a court” to indicate “which courts would hear which disputes.”

Foley said no, to which Gohmert seemed incredulous.  He exceeded his time in further questioning Foley.  Issa then stopped Gohmert, asking to use the time that Gohmert “didn’t have.” Issa then went to Rep. Poe, who said he “appreciates discussion about the Constitution.”

Turley answered Poe that Congress is the branch which can restrain the other two branches, if necessary.

Poe then asked about a mention of “impeachment” which Turley had made.  Turley said that if “impeachment is the only” solution, it places the nation in a very serious position.

Rep. Marino then spoke, saying that he is “displeased” with executive actions made by presidents of both parties in the past.  Marino was a district attorney for 18 years.  He asked Schroeder how Obama can issue an order to Holder or state attorneys general not to follow laws that “they don’t like.”  Schroeder responded that as an example, the role of the FBI changed after 9/11 to root out terrorism.  Marino responded that “priorities were established” and that other crimes were not ignored as a result of the shift.

Rep. Trey Gowdy then spoke, citing instances in which “a president” can allegedly exercise “prosecutorial discretion” in a tongue-in-cheek presentation.  Gowdy objected to “certain sections” of a law being set aside after it is passed and signed because of “a compromise.”  Gowdy cited the federal law for cocaine possession to Schroeder, who had advocated earlier for prosecutorial discretion.  “Congressman, I’m sorry; I’m not familiar with the law…” Schroeder said.  Gowdy responded, “That is rewriting the law, professor!”  Schroeder then apologized again for “not being thoroughly versed on this issue.”

Gowdy then asked Turley how the same principle could be applied to “election law.”  Turley said that the Framers would not have spent all of the time they did instituting the government it did if it all came down to the president being able to make a unilateral decision.

He brought up the issue of “standing” and said that it should not necessarily be limited.

Gowdy said he respected Turley for admitting that he agrees with many of Obama’s decisions, but not the method by which he made them without congressional action.

Rep. Labrador then spoke.  Turley responded that in the area of “greenhouse gases,” “Even though I agreed with the president in that area…Congress needs to weigh in…”  Turley said that the Framers gave us “a process,” not a “guarantee.”

Labrador asked Foley about her comments about “magisterial powers” as they apply to the presidency.  Foley responded by saying that King George III was thrown off because he was “a monarch.”

Rep. Steve King was then recognized and made the point that the minority party was asked to present testimony, as did four Republicans at the beginning of the hearing.  King said that Obama enforces laws only if they are politically advantageous and faulted Obamacare for requiring Catholic institutions to provide contraception and other religiously-objectionable items.  He said that Obama then declared that the services would be offered “for free” by the insurance companies, and that the companies “bowed” to Obama’s decree.

King said he does not agree with the measure to appeal to the courts for a decision on whether or not Obama has violated the Constitution.  King referenced his mention of “impeachment,” which he called “the ‘I’ word.”  “We have Harry Reid as a shield in the Senate,” he said, then referenced the Founding Fathers in regard to the current situation.

He asked Turley if Obama refuses to recognized the court and Congress, “What’s our recourse?”  Turley responded, “What you’re describing would be ‘tyranny’…but I think we have other options.”

“I don’t believe that the book is closed on member standing,” Turley said.  He said if “all the safeties go off,” he believes the Framers thought that two branches of government would agree, implying that the courts have been weak in enforcing the Constitution.

At 1:08 p.m., Goodlatte adjourned the hearing.

[Editor’s Note:  This transcript does not contain all of those who asked and answered questions during the hearing.]

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  1. Great report! I think they are seeing how hard it is to be right, but have the process take so long O basically gets through the next 3 year’s. The eligibility issue is indeed made to look better and more effective if they can swallow their pride in letting it go this long.