On day two of Judiciary Committee’s Task Force on Executive Overreach, he blames Congress for some of the problem

By William L. Spence

Given the continued erosion of the separation of powers that has occurred on President Barack Obama’s watch, Idaho Congressman Raul Labrador is having nightmares imagining what President Donald Trump might do. 

During a meeting Tuesday of the House Judiciary Committee’s Task Force on Executive Overreach, Labrador said Obama’s ability to sidestep the will of Congress through executive orders and agency rules “provides a concerning precedent for future administrations.” 

“Imagine what a President Trump would do with this,” he said. “He’s already told us Congress doesn’t work, that he doesn’t need Congress to act.” 

Labrador suggested Congress itself is responsible for much of this abuse. 

“I think Congress has failed to be specific in what the executive should or shouldn’t do,” he said. “Sometimes Congress has punted and given the executive too much authority. It’s pure laziness – we don’t want to write precise laws, so we write broad laws that give the executive branch a lot of authority and discretion. I hope we address that issue in this task force.” 

This was the second meeting of the task force. The first focused on the constitutional role of Congress; Tuesday’s hearing examined whether Obama illegally and unilaterally changed the Affordable Care Act and federal immigration policies through executive actions. 

For example, despite language in the ACA requiring medium-size employers to provide employee health insurance by a specific date, the Obama administration postponed the deadline until after the 2014 elections, without the approval or consent of Congress. 

The administration has also delayed deportation actions against millions of illegal immigrants, focusing its enforcement activities instead on those accused of serious crimes. 

Rep. Steve King, R-Iowa, suggested these decisions represent a misuse of the concept of “prosecutorial discretion,” which gives the executive branch some leeway in deciding when and if to enforce certain laws. 

Rather than apply that concept on a case-by-case basis, as intended, he said, Obama used it to protect entire classes of illegal immigrants, effectively nullifying federal immigration laws. 

“The president claims the concept of ‘prosecutorial discretion’ allows him to permit at least 4 million people to stay here under a suspension of the immigration laws,” King said. “That number is staggering, and under its weight the concept of prosecutorial discretion – which is intended to encompass individual, case-by-case determinations – flattens to nothing.” 

Elizabeth Slattery, a legal fellow at the Heritage Foundation, said there’s no question the executive branch needs some discretion in deciding how best to implement new laws – particularly complex legislation like the ACA. 

However, “that’s not a blank check to change the law through under-enforcement,” said Slattery, one of four witnesses who testified during Tuesday’s hearing. 

On the other hand, Simon Lazarus, senior counsel with the Constitutional Accountability Center, noted Congress specifically directed the Department of Homeland Security to establish national enforcement policies and priorities. 

“If Congress thinks the discretion it granted is too broad, it has the opportunity to do something about that,” he said. “When you look at the actual record, you see Obama implementing the ACA and immigration laws and exercising discretion in ways that all previous administrations have done – and been upheld in the courts for doing. We’re talking about practices that have been going on and endorsed by Congress for decades.” 

Josh Blackman, a law professor at the South Texas College of Law, said the fact that past presidents got away with something and that Congress didn’t object doesn’t make it constitutional. 

“Congress needs to re-assert itself in the separation of powers,” he said. 

Labrador said he hopes Republicans and Democrats can be united in that effort. 

“I ran for Congress after seeing President Bush’s flagrant examples of overreach,” Labrador said. “To me, it was abhorrent that the president wasn’t following the law. Many of my friends on the left were with me. … So it shocks me at this hearing to not hear a single Democrat go after this president for his overreach. It saddens me. It means there’s no real respect for the power and authority we have in Congress.” 

The task force is scheduled to complete its investigation by July and make recommendations on how to restore the proper balance of powers.