Two constitutional law professors told Congress on Tuesday that President Obama exceeded his authority when he unilaterally extended the deadline for enforcement of the employer mandate in the Affordable Care Act.
They said he also “crossed the constitutional line” when he issued an executive order suspending enforcement of US immigration laws to prevent the deportation of immigrants who arrived illegally in the US as children.
The law professors made their comments during a three-hour hearing before the House Judiciary Committee, which is examining a string of unilateral actions taken by the White House that critics say usurped legislative powers or bypassed limits on executive authority.
The focus of the hearing was the constitutional requirement that the president “shall take care that the laws be faithfully executed.”
“I believe the president has exceeded his brief,” George Washington University Law Professor Jonathan Turley testified.
“The president is required to faithfully execute the laws. He’s not required to enforce all laws equally or commit the same resources to them,” he said. “But I believe the president has crossed the constitutional line.”
The administration has defended its actions and those of the president as falling within acceptable limits of executive discretion. A legal scholar called by Democrats on the House committee agreed with that assessment.
Some Democrats on the House committee criticized the hearing as a waste of time and “pure political theater.”
Republicans on the committee said it was an important issue that needed to be addressed.
“From ‘Obamacare’ to immigration, the current administration is picking and choosing which laws to enforce,” said Committee Chairman Robert Goodlatte (R) of Virginia.
“It is a bedrock principle of constitutional law that the president must faithfully execute acts of Congress,” he said. “The president cannot refuse to enforce a law simply because he dislikes it.”
Georgetown University Law Professor Nicholas Rosenkranz agreed with Turley’s assessment that the president had crossed the line in some of his unilateral actions.
He said Obama ignored a provision in the ACA that required the employer mandate to take effect on Jan. 1, 2014. When problems emerged with the rollout of the reform law, the president might have asked Congress to amend the statute to push the deadline back. He didn’t.
Instead, the president announced that the deadline would be suspended.
“This is wholesale suspension of law in the teeth of a clear statutory command to the contrary,” Professor Rosenkranz said.
“Whatever it means that the laws be faithfully executed, it cannot mean failing to execute the law at all,” he said.
The professor added that Congress had passed a measure to delay implementation of the employer mandate. Rather than using that bill or working with Congress to fashion a better alternative, the president threatened to veto the proposed legislation, and then acted alone, he said.
In the immigration area, Rosenkranz said Congress had repeatedly considered a proposed bill called the Dream Act. If passed, it would allow children brought to the US by their undocumented immigrant parents to remain in the US without facing deportation.
The president supported the legislation, but it never passed. Nonetheless, the president later ordered immigration authorities in his administration to exercise their prosecutorial discretion and decline to deport so-called “Dream Act” children.
“Rather than declining to comply with a duly enacted statute, the president is complying meticulously, but with a bill that never became law,” Rosenkranz testified.
The president simply announced that he would enforce the nation’s immigration laws as if the Dream Act had been enacted, Rosenkranz said.
The professor added another case to the list. He said actions by the IRS to target politically conservative groups were another example of the Obama administration acting in a way that violated the president’s constitutional duty.
“The story of the IRS targeting was actually the application of the tax laws to the president’s political enemies in a discriminatory way,” Rosenkranz said. He said it was “perhaps the most troubling violation of the president’s obligation to take care that the laws be faithfully executed.”
In comments at the start of the hearing, Michigan Democrat John Conyers, the ranking Democrat on the committee, said he saw no evidence that the president had failed to fulfill his duty. “Unfortunately, it appears that some here view policy disagreements as constitutional crises and proof of possible wrongdoing,” he said.
Congressman Conyers said that the actions of the administration being criticized were “not really that much out of the ordinary.”
“Allowing flexibility and the implementation of a new program even where the statute mandates a specific deadline, is neither unusual nor a constitutional violation,” Mr. Conyers said.
The congressman said the president’s action in blocking deportations of Dream Act children was a “classic exercise” of executive discretion.
Professor Turley viewed the issue from a different perspective
He warned that the structure of the US government was morphing into something the Founding Fathers would not recognize. “I really have great trepidation over where we are heading because we are creating a new system here,” he said.
The constitution does not permit the president to wield expansive powers at the expense of Congress, he said. Turley noted that the president’s expansive exertion of power was coming with the rapid growth of a fourth branch of government comprised of federal agencies that are writing their own regulations.
“We have this rising fourth branch in a system that’s tripartite,” he said. “The center of gravity is shifting, and that makes it unstable. And within that system you have the rise of an uber-presidency.”
Turley continued: “There could be no greater danger for individual liberty, and I really think that the framers would be horrified by that shift because everything they’ve dedicated themselves to was creating this orbital balance, and we’ve lost it.”