WASHINGTON – “A dangerous change for our system” is how a constitutional scholar who voted for Barack Obama described the president’s use of executive orders to bypass Congress.
Nationally acclaimed constitutional scholar Professor Jonathan Turley of the George Washington University Law School is the second-most cited law professor in the country.
Testifying before a House Judiciary Committee looking into whether the president is faithfully executing the law, Turley flatly stated, “We are in the midst of a constitutional crisis with sweeping implications for our system of government.”
He also said that while he may agree with many of Obama’s policies, he has grave concerns about the way the president is implementing those policies.
Turley noted he had criticized former President George W. Bush for his use of executive orders, but the professor has become “alarmed” by the increasing number of those orders under Obama.
The professor had previously testified that in his view, Obama “has repeatedly violated this doctrine (of the separation of powers) in the circumvention of Congress in areas ranging from health care to immigration law to environmental law.”
Turley even described how he had “momentary lapses where I privately rejoiced in seeing actions on goals that I share, even though they were done in the circumvention of Congress.” As an example, he said that when Obama “unilaterally acted on greenhouse gas pollutants, I was initially relieved.
“I agree entirely with the priority that he has given this issue,” he said.
However, the professor admitted, “It takes an act of willful blindness to ignore that the greenhouse regulations were implemented only after Congress rejected such measures and that a new sweeping regulatory scheme is now being promulgated solely upon the authority of the president.”
The committee was convened to try to determine what power Congress has to make the president faithfully enforce the law, as the Constitution requires. The testimony involved highly technical legal issues on whether Congress has the legal standing to sue the administration to force the president to execute the law.
The consensus among the three legal scholars who testified appeared to be that Congress may have that authority, if it meets certain technical requirements. But they appeared to believe impeachment would be too strong a remedy, at this point.
Combative Rep. Trey Gowdy, R-S.C., a former federal prosecutor, seemed to make the most progress in getting the legal scholars to agree that Congress, indeed, has the legal standing to sue the president to comply with the law.
Gowdy incredulously noted how Attorney General Eric Holder has refused to enforce mandatory minimum sentencing in certain drug cases because he disagrees with those laws. The congressman pointedly asked, “If he can do that with drug laws, why not election laws?”
Turley said that observation “hit the nail on head” and, if permissible, would make all of the constitutional separation of powers merely discretionary. It would leave it up to the president to decide which laws he would choose to enforce.
The solution, the professor said, lies in Congress. In his legal opinion, Congress, as a relatively small body, is “particularly well-designed” to have legal standing to bring lawsuits challenging the legality of the president’s unilateral actions and executive orders.
Turley and another legal scholar even criticized Congress for being too timid in not standing up to Obama.
“Recently, Congress has seemed, frankly, feckless and uncertain as to its authority,” chided Turley.
Later, he offered a withering psychoanalysis of lawmakers, observing, “For Congress not to act, in my view, borders on self-loathing. I don’t understand why Congress would allow a president to come to this body and ask for reforms, some of which I happen to agree with, and then simply take unilateral action once this body refuses to implement those reforms.”
An explicit warning came from Florida International University law professor Elizabeth Price Foley, who told lawmakers, “If you want to stay relevant as an institution, I would suggest that you not stand idly by and let the president take your power away.”
The president has used executive orders to unilaterally make many changes to the flailing health care law, notably, delaying the employer mandate by more than a year. He has also used executive orders to halt deportations of certain illegal immigrants and raise the minimum wage of federal employees, moves questioned by some legal scholars.
Rep. Diane Black, R-Tenn., was one of four members of Congress who have introduced legislation to curb the president’s authority to attempt to rule by executive order.
They testified before the Judiciary Committee.
The president’s “outrageous shell game is a perfect example of this pen and phone president circumventing the will of Congress to force his own agenda and is exactly why the American people cannot trust this administration,” declared Black, in a rare appearance of lawmakers as witnesses in a congressional hearing.
She was referring to the president’s threat to use his pen and phone to issue executive orders to bypass Congress.
The lawmakers who testified all believed Obama’s repeated use of far-reaching executive orders has been unconstitutional and designed to circumvent the law and the will of Congress.
“President Obama’s actions have pushed executive power beyond all limits and created what has been characterized as an uber-presidency. The question that arises from the president’s end-runs around the legislative branch is, what can Congress do to check these broad assertions of power and restore balance to our system of separated powers?” asked Chairman Bob Goodlatte, R-Va.
“There is no question that on several occasions in recent years, we have witnessed an unparalleled use of executive power to selectively apply, enforce, and even ignore duly enacted laws,” testified Rep. Jim Gerlach, R-Pa.
Gerlach accused Obama of “fundamentally altering the delicate constitutional balance among the three branches of our federal system.” He said the concept of an “imperial presidency” has reentered the national dialogue.
Gerlach noted that Obamacare has been “revised, altered and effectively rewritten” by the administration 23 times since July. The most recent executive action came two weeks ago when the president unilaterally declared a one-year delay of the employer mandate for companies with 50 to 99 full-time workers.
On Jan. 29, Attorney General Holder was unable to explain to a Senate committee the constitutional basis of Obama’s executive orders suspending parts of Obamacare.
“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 told Sen. Mike Lee, R-Utah, when asked to explain the president’s constitutional power to delay the employer mandate.
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