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.”
In testimony Wednesday before the House Judiciary Committee, Obama’s top law enforcement officer, Attorney General Eric HolderEric H. HolderEllison needles Perez for 'unverifiable' claim of DNC support With party in trouble, Dems hit voting laws Bottom Line MORE, 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 ObamaBarack ObamaFormer Defense chief: Trump's handling of national security 'dysfunctional' Priebus, Wallace clash over media coverage of Trump Rand Paul: We’re very lucky John McCain’s not in charge MORE.