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Hearing of the House Judiciary Committee - The President's Constitutional Duty to Faithfully Execute the Laws


Location: Washington, DC

Today's hearing is about the President's role in our constitutional system.

Our system of government is a tripartite one, with each branch having certain defined functions delegated to it by the Constitution. The President is charged with executing the laws; the Congress with writing the laws; and the Judiciary with interpreting them.

The Obama Administration, however, has ignored the Constitution's carefully balanced separation of powers and unilaterally granted itself the extra-constitutional authority to amend the laws and to waive or suspend their enforcement.

This raw assertion of authority goes well beyond the "executive power" granted to the President and specifically violates the Constitution's command that the President is to "take care that the laws be faithfully executed."

The President's encroachment into Congress's sphere of power is not a transgression that should be taken lightly. As English historian Edward Gibbon famously observed regarding the fall of the Roman Empire, "the principles of a free constitution are irrevocably lost, when the legislative power is dominated by the executive." Although the President's actions may not yet amount to the executive's powers overtaking the legislative power, they are certainly undermining the rule of law that is at the center of our constitutional design.

From Obamacare to immigration, the current administration is picking and choosing which laws to enforce. But the Constitution does not confer upon the President the "executive authority" to disregard the separation of powers by unilaterally waiving, suspending, or revising the laws. It is a bedrock principle of constitutional law that the President must "faithfully execute" Acts of Congress. The President cannot refuse to enforce a law simply because he dislikes it.

Certainly, presidents have from time to time made broad claims of executive power. However, assertions of executive authority have traditionally been limited to the area in which presidential powers are at their strongest--foreign affairs.

The Obama Administration though has been equally assertive in the realm of domestic policy, routinely making end runs around Congress through broad claims of prosecutorial discretion and regulatory actions that push executive power beyond all limits. Indeed, President Obama is the first President since Richard Nixon to ignore a duly-enacted law simply because he disagrees with it.

In place of the checks and balances established by the Constitution, President Obama has proclaimed that "I refuse to take "no' for an answer" and that "where [Congress] won't act, I will." Throughout the Obama presidency we have seen a pattern: President Obama circumvents Congress when he doesn't get his way.

For instance, while Congress is currently debating how to reform our immigration laws, the President effectively enacted the DREAM Act himself by ordering immigration officials to stop enforcing the immigration laws against certain unlawful immigrants. When he couldn't get his preferred changes to the No Child Left Behind education law, he unilaterally waived its testing accountability provisions. When he objected to the work requirements in the bipartisan welfare reform law, he granted waivers that are specifically forbidden by the statutory text. Instead of working with Congress to amend federal drug enforcement policy, he's instructed prosecutors to stop enforcing certain drug laws in certain states and mandatory minimum sentences for certain offenses.

And, most notably, the President has--without statutory authorization--waived, suspended, and amended several major provisions of his health care law. These unlawful modifications to Obamacare include: delaying for one year Obamacare's employer mandate; instructing States that they are free to ignore the law's clear language regarding which existing health care plans may be grandfathered; and promulgating an IRS rule that allows for the distribution of billions of dollars in Obamacare subsidies that Congress never authorized.

The House has acted to validate retroactively some of the President's illegal Obamacare modifications. However, rather than embrace these legislative fixes, the President's response has been to threaten to veto the House passed measures.

The President's far-reaching claims of executive power, if left unchecked, will vest the President with broad domestic policy authority that the Constitution does not grant him.

Those in the President's political party have been largely silent in the face of this dangerous expansion of executive power. But what would they say if a president effectively repealed the environmental laws by refusing to sue polluters or the labor laws by refusing to fine violators?

What if a president wanted tax cuts that Congress would not enact? Could he instruct the IRS to decline to enforce the income tax laws? President George H. W. Bush proposed, unsuccessfully, a reduction in the capital gains rate. Should he have instead simply instructed the IRS not to tax capital gains at a rate greater than 10 percent?

The point is not what you think of any of President Obama's individual policy decisions. The point is that the President may not--consistent with the command that he faithfully execute the laws--unilaterally amend, waive, or suspend the law.

We must resist the President's deliberate pattern of circumventing the legislative branch in favor of administrative decision making.

We cannot allow the separation of powers enshrined in our Constitution to be abandoned in favor of an undue concentration of power in the executive branch. As James Madison warned centuries ago in Federalist 47, "the accumulation of all powers legislative, executive and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny."

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