The Hill
By Benjamin Goad
April 13, 2014
Republicans are ratcheting up accusations that President Obama is playing fast and loose with enforcing federal statute.
On
issues ranging from marijuana legalization and criminal sentencing to
healthcare and immigration, the president’s lieutenants have taken
actions that critics say violate
his constitutional duty to “take care that the laws be faithfully
executed.”
The
administration has sought to deflect the criticism, claiming not only
that the president has acted within his power, but that an obstructive
Congress has left him
no other choice.
In
testimony Wednesday before the House Judiciary Committee, Obama’s top
law enforcement officer, Attorney General Eric Holder, claimed “a vast
amount” of prosecutorial
discretion in how the Justice Department enforces federal laws.
“I
do think that the policy pronouncements that I've made in the recent
months are consistent with the law and also are consistent with good law
enforcement,” Holder said.
The
remarks drew fresh criticism from those who say it reveals a flawed
legal view that has served as the basis for executive overstep.
“The
testimony reflected the near absolute view the administration has
toward its powers,” said Jonathan Turley, a liberal-minded George
Washington University law professor
who said he voted for Obama and generally agrees with administration’s
policy positions.
“I
do not agree that prosecutorial discretion supports the full range of
unilateral actions that the administration has taken in these areas,”
Turley said.
In
Congress, a growing chorus of GOP lawmakers charge the administration
with creating federal policy via memo, blowing statutory deadlines and
even showing a willingness
to ignore laws entirely.
Rep.
Trey Gowdy (R-S.C.) a member of the Judiciary Committee and former
federal prosecutor, said the administration has gone well beyond the
traditional limits of prosecutorial
discretion afforded to the Justice Department.
“That’s not prosecutorial discretion,” Gowdy told The Hill. “That’s anarchy.”
At
this week’s heated hearing, Judiciary Committee Chairman Bob Goodlatte
(R-Va.) called the decision to not interfere with Colorado’s marijuana
legalization efforts a
“formal department-wide policy of selective non-enforcement of an Act
of Congress.”
Holder,
however, maintained that the agency is still enforcing the most serious
aspects of marijuana crime, such as trafficking or sales to minors.
“Those are the things that I think are worthy of federal consideration,” Holder said.
Holder
also defended his directive instructing federal prosecutors to file
charges in certain illegal drug cases without specifying the weight of
the drugs involved, thus
allowing judges more flexibility to avoid mandatory minimum sentences.
On
Friday, Holder cited a U.S. Sentencing Commission vote to reduce
federal sentencing guidelines for certain drug crimes as evidence that
his own directive, part of the
Justice Department’s “Smart on Crime” initiative, is in line with a
consensus view.
Indeed
there is bipartisan support for legislation to move the criminal
justice system away form mandatory minimums, with conservative Sen. Rand
Paul (R-Ky.) backing the
plan and Sens. Dick Durbin (D-Ill.) and Mike Lee (R-Utah) teaming up on
a bill to give judges more leeway.
Gowdy
said he might be persuaded to support legislation relaxing sentencing
guidelines, but vehemently opposed the attorney general’s methods.
“Holder with a memo has essentially trumped that statute,” he said.
All
sides agree that the Obama administration enjoys some measure of
prosecutorial discretion. But Turley, the GW law professor, called it
“highly questionable when you
use it to create categorical exclusions, if not an outright negation of
federal law.”
“The problem with Holder’s interpretation is that there’s no inherent limiting principal,” he said.
Republicans
on Wednesday assailed Holder over the Obama administration decision to
delay a the Affordable Care Act’s provision requiring employers to offer
their workers
health insurance or pay a penalty, noting that the law set out a clear
start date for the so-called employer mandate.
The
GOP has also complained abut the Department of Homeland Security’s
decision in 2012 to halt deportations of certain illegal immigrations
through a “deferred action” program also rooted in prosecutorial discretion.
Turley,
who has testified before Congress on multiple occasions, points to a
rise in executive branch power that began well before Obama took office.
President George
W. Bush, for instance, expanded the reach of the presidency with a
series of actions made in the name of national security following the
Sept. 11 terrorist attacks.
But
he said the phenomenon has accelerated under Obama, and that the
federal courts are to blame for neglecting to step in more frequently to
settle disputes like those
on display Wednesday.
“What
you saw in that hearing was the direct result of the failure of the
courts to perform their constitutional function,” he said.
Holder maintained the Justice Department must enforce laws unless it concludes, “there is no basis to defend the statute.”
He
cited, for example, the administration’s decision no longer to defend
the Defense of Marriage Act (DOMA), which prohibited same sex couples
from receiving certain federal
benefits. That position, Holder noted, was upheld by the Supreme Court,
which later struck down main provisions of the statute.
The
high court has also backed the administration’s authority to regulate
greenhouse gas emissions – a centerpiece of the president’s climate
change initiative – even
though Congress has not expressly signed off on regulations now under
construction.
The
justices will have another chance to weigh in on executive authority in
its upcoming ruling in a case involving the limits of a president’s
power to make appointments
during periods of congressional recess.
But
Turley said the judicial branch has shied away more often than it has
inserted itself in disputes between the other two branches, leaving
Congress and the White House
to settle matters through “bare-knuckled politics.”
It’s not a fair fight, he said.
Congressional Republicans have sought to tamp down on presidential authority in various ways.
Gowdy’s
ENFORCE Act, for example, would allow the House or Senate to authorize
legal action against the administration's willful neglect of the law.
The
Faithful Execution of the Law Act, offered by Rep. Ron DeSantis
(R-Fla.), would require the government to report to Congress whenever a
decision has been made not
to enforce the law and explain why that decision was made.
Rep.
Tom Rice (R-S.C.) is pressing for a resolution leading to a federal
lawsuit challenging President Obama's use of executive power.
But
there is no clear path forward for any the legislation and, unless the
courts intervene more forcefully, the executive branch will continue to
have the upper hand,
Turley said.
“What
concerns me is that our system is changing in a fundamental way,” he
said. “Future presidents will not willingly part with the powers created
by George W. Bush and
Barack Obama.
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