Legal Experts Criticize Obama’s Executive Actions

By Todd Ruger 


Several constitutional law experts criticized some of President Obama’s executive actions today, telling lawmakers on Capitol Hill that the administration crossed a line by delaying the new health care law and changing immigration enforcement.


At a House Judiciary Committee hearing, Jonathan Turley, a professor of public interest law at George Washington University Law School, testified that there has been a radical expansion of presidential powers in recent years, beginning with President George W. Bush and continuing under Obama.


The Obama administration has “an undeniable pattern of circumventing Congress in the creation of new major standards, exceptions, or outright nullifications,” Turley said.


That has caused a continued rise of a fourth branch—large agencies that can determine their own jurisdictions—and created a dangerous and unstable system for future presidents who will claim the same authority, Turley said.


“He’s become the very danger the Constitution was designed to avoid, the concentration of power in any one of the branches,” Turley said of Obama. “If a president can unilaterally change the meaning of laws in substantial ways, or refuse to enforce them, it takes offline that very thing that stabilizes our system.”


Nicholas Rosenkranz, a constitutional law professor at Georgetown University Law Center, testified that Obama has stretched the concept of prosecutorial discretion, particularly in a decision to stop enforcement against certain types of illegal immigrants. “This is a scale of decision making that is not within the traditional conception of prosecutorial discretion,” Rosenkranz said.


Rosenkranz, when answering questions from lawmakers, said the remedy for the overreach is elections. But he also suggested Congress would have grounds for impeachment if a president took unilateral action on something like declaring war.


Michael Cannon, the director of health policy studies at the Cato Institute, said that delays in the Affordable Care Act and the administration actions changing that law have “more in common with monarchy than democracy or a constitutional republic.”


“Today, with respect to health care, the law of the land is whatever one man says it is—or whatever this divided Congress will let that one man get away with saying,” Cannon said. “What this one man says may flatly contradict federal statute.”


Cannon filed an amicus brief in a case in Washington’s district court challenging the Affordable Care Act. The plaintiffs in Halbig v. Sebelius argue that an Internal Revenue Service rule—making tax credits available to low- and middle-income residents of states that declined to set up health care exchanges under the act—violates the text of the health care law. Oral arguments are being held today on motions for summary judgment.


Taking the other side of the issue at the Judiciary Committee hearing, Simon Lazarus, senior counsel to the Constitutional Accountability Center, called the alleged problems with the Affordable Care Act implementation and Obama’s actions, “hyperventilating and contrary to historical fact.”


Exercising presidential judgment when executing laws is precisely what the Constitution requires, Lazarus said, and delays in implementing the health care law do not constitute a refusal to do so.


Rep. Jerrold Nadler (D-N.Y.) said he was not concerned that Obama was circumventing Congress so he would delay his signature health care law, but had real concerns about presidential overreach on war powers and surveillance issues. “Everything we’re talking about today is laughable in the face of these problems,” Nadler said.