[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
OBAMA ADMINISTRATION'S ABUSE OF POWER
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 12, 2012
__________
Serial No. 112-145
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
----------
U.S. GOVERNMENT PRINTING OFFICE
75-846 PDF WASHINGTON : 2012
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada
Richard Hertling, Staff Director and Chief Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
C O N T E N T S
----------
SEPTEMBER 12, 2012
Page
OPENING STATEMENTS
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Committee on the Judiciary....... 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 3
WITNESSES
The Honorable Mike Lee (R-UT), United States Senator, State of
Utah
Oral Testimony................................................. 5
Prepared Statement............................................. 9
Lori Windham, Senior Counsel, The Becket Fund for Religious
Liberty
Oral Testimony................................................. 15
Prepared Statement............................................. 16
Michael J. Gerhardt, Professor of Constitutional Law and
Director, Center on Law and Government, University of North
Carolina
Oral Testimony................................................. 20
Prepared Statement............................................. 21
Lee A. Casey, Partner, Baker Hostetler
Oral Testimony................................................. 23
Prepared Statement............................................. 25
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Elton Gallegly, a
Representative in Congress from the State of California, and
Member, Committee on the Judiciary............................. 34
Material submitted by the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary..................................... 49
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Henry C. ``Hank'' Johnson,
Jr., a Representative in Congress from the State of Georgia,
and Member, Committee on the Judiciary......................... 67
OBAMA ADMINISTRATION'S ABUSE OF POWER
----------
WEDNESDAY, SEPTEMBER 12, 2012
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to call, at 10:10 a.m., in room
2141, Rayburn House Office Building, the Honorable Lamar Smith
(Chairman of the Committee) presiding.
Present: Representatives Smith, Coble, Gallegly, Goodlatte,
Lungren, Chabot, Issa, Pence, Forbes, King, Franks, Gohmert,
Jordan, Chaffetz, Griffin, Marino, Gowdy, Ross, Adams, Quayle,
Amodei, Conyers, Nadler, Scott, Watt, Lofgren, Jackson Lee,
Waters, Cohen, Johnson, Quigley, Chu, Deutch, and Polis.
Staff Present: (Majority) Richard Hertling, Staff Director
and Chief Counsel; Travis Norton, Counsel; Holt Lackey,
Counsel; David Lazar, Clerk; (Minority) Perry Apelbaum, Staff
Director and Chief Counsel; Danielle Brown, Counsel; and Aaron
Hiller, Counsel.
Mr. Smith. The hearing will come to order. Without
objection, the Chair is authorized to declare recesses of the
Committee at any time. We welcome everyone to this hearing. We
are going to begin with opening statements by me and the
Ranking Member. Then I will introduce the witnesses. Then we
will proceed to questions for those witnesses.
This Committee has held hearings on many of the ways in
which the Obama administration has abused its power, ignored
its duties, evaded responsibility and overstepped the
Constitution's limits on the President. Today's hearing will
look at the pattern of ignoring constitutional limits created
by all these examples of abuses.
The Administration has repeatedly, in my view, put its
partisan agenda above the rule of law. In doing so, it has
eroded the constitutional and legal foundations that have kept
America prosperous and free for over 200 years. President Obama
has to an unprecedented extent failed to ``take care that the
laws be faithfully executed.'' Instead he, has repeatedly
issued blanket waivers that exempt large classes of the
population from duly enacted laws.
For example, the President once acknowledged that for him
to ``simply through Executive order ignore'' the immigration
laws on the books ``would not conform with his appropriate role
as President.'' Nonetheless, he acted contrary to his own words
and decided not to enforce some immigration laws. As a result,
in these times of sustained unemployment, American workers will
be forced to compete with illegal immigrants who, according to
the law should not be given work permits.
Similarly, the Administration has issued waivers to the No
Child Left Behind Act and the Welfare reform bill that are so
broad that they effectively rewrite the law instead of
enforcing it.
Just because you don't like the law, doesn't mean you can
ignore it. Many people have gone to jail for doing just that.
The President ignored the Senate's constitutional role in the
appointment process in order to place partisans in key
positions that regulate labor and the financial markets. To do
so, he took the unprecedented position that he could make a so-
called ``recess'' appointment even when the Senate by its own
rules, was not in recess.
The Administration also has shown contempt for
Congressional oversight of its activities. In order to hide
documents related to the Fast and Furious scandal the President
asserted a broad executive privilege that is not supported by
precedent. Executive privilege cannot apply to documents that
don't involve the President or his close advisers ``if there is
any reason to believe government misconduct occurred.''
Operation Fast and Furious and the Administration's misleading
statements to Congress about the operation are exactly the sort
of misconduct that Presidents may not conceal behind a claim of
privilege. By concealing the truth about Fast and Furious
behind an improper claim of privilege, the President has
undermined the constitutional requirement that the executive
branch answer for its actions to Congress and the American
people.
The President has also ignored the Constitution's
protections of individual rights, most notably religious
freedom. By mandating that employers pay for health care
products and services that many employers believe to be morally
wrong, he has forced Americans to choose between violating the
law or violating their religious beliefs. The Constitution does
not allow the government to put Americans to such a choice.
Together, these abuses by the Obama administration form a
disturbing pattern. When the Constitution and laws limit the
Administration's ability to impose its partisan agenda, the
President ignores the Constitution and the laws. This pattern
of behavior hurts our country, disrespects the Constitution and
undermines our democracy. It is easy to think of disputes about
the President's power as abstract questions of constitutional
theory, unimportant to anyone but law professors and D.C.
Insiders. But when the Administration repeatedly ignores
constitutional and legal limits on the President's power, it
undermines the rule of law, with very real consequences.
In 2008, the United States ranked number one in the World
Economic Forum's Global Competitiveness Report. In just 4
years, we have fallen to the seventh most competitive economy
in the world. According to the report, a large part of
America's lost competitiveness comes from the decline in faith
in public institutions and the government. The Obama
administration's continued abuse of authority contributes to
this decline in faith in our institutions and creates
uncertainty that undermines America's job creators and
businesses.
America has been the most prosperous and free Nation in the
world in large part because of our adherence to the
Constitution and the rule of law. Today's hearing examines how
the Obama administration has ignored this long tradition and
how we can return to it.
That concludes my opening statement. And the gentleman from
Michigan, the Ranking Member of the Judiciary Committee, is
recognized for his.
Mr. Conyers. Mr. Chairman, we have had a respectful
relationship in the way that you have Chaired this Committee,
but I must observe that in the title for today's hearing it is
unnecessarily open ended and provocative, and I would ask you
to please consider withdrawing the hearing title from the
official record when we go to print. And why? Because the use
of such an incendiary term without having any conclusion or
hearings or evidence that lead to this conclusion ``abuse of
power'' is one that should not be taken lightly. I believe it
is inappropriate when no factual or legal predicate has been
presented to justify this terminology and that in my judgment
the tenor of this hearing by its mere title alone fails to
distinguish the differences between opinion and true abuses of
the public trust. And of course all Members are entitled to
their political opinion, but they are not entitled, none of us,
to label every disagreement with the White House as an abuse of
power.
I know something about this because in 1965 when I came to
this body I have had enough disagreements since then with
enough Presidents to recognize that not every difference that I
have with them in policy preference is evidence of an abuse of
Executive power.
President Nixon, for example, and I disagreed on many
issues, including civil rights and crime policy. Those were
political disagreements. The abuses were separate. They came
later. In 1973 the Senate Watergate Committee uncovered
President Nixon's enemies list. I was number 13 on that list,
and so I am able to speak from firsthand experience. The
investigation of this Committee revealed that the Nixon
administration's plans to ``use the available Federal
machinery'' to attack its ``political enemies,'' including
illegal wiretaps, slush funds and break-ins, all of which
happened. In 1974 we learned that the President had engaged
directly in attempts to obstruct the Watergate investigation.
These acts, damaging to the office and in many cases criminal
as well, constituted true abuse of power.
Now it is accurate that as the Chairman of this Committee
in the 110th Congress I called a hearing examining the Bush
administration's broad claims of Executive power. But we titled
that hearing Executive Power and Its Constitutional
Limitations. We were not conclusionary. We did not determine
what we thought was the case and started off the hearing in
that sense, as I think we are erroneously doing this morning. I
believe we kept the tone of that hearing academic and
respectful. We did not presuppose any wrongdoing in the title
that was noticed to the public, as is the case here today.
And it is also true that in March of 2009 the Committee
issued a report titled Reining in the Imperial Presidency. In
that report totaling 478 pages, 1,736 footnotes, we used the
term ``abuse'' with respect to issues like the unlawful firing,
hiring and firing of Justice Department personnel, warrantless
wiretapping and torture of detainees. We concluded that this
conduct constituted an abuse of executive authority only after
years of research and documentation. Our conclusions were
backed by successful litigation and numerous Inspector General
reports. And we did not release these findings 2 months prior
to a presidential election.
So Mr. Chairman, you may believe that the President's
recess appointments are unconstitutional, but this issue will
be resolved by the courts. There is little we can do or say to
change the outcome of that litigation. And similarly you may
believe that the Obama administration's decision to invoke
executive privilege in the Fast and Furious investigation is
unprecedented and abusive. This case is not as clean cut as
when the Bush administration invoked the blanket privilege over
all testimony and documents in the U.S. Attorney's
investigation, and I would argue that the implication of
privilege here is not unprecedented. But it will be up to the
courts to decide whether or not it is abusive.
Again, there is little more that we can add to the debate
today. So in the few working days that remain in this Congress
I would urge my colleagues to address some of the issues that
will not have the benefit of a first hearing in this Committee
let alone a second. You see we have not had a single hearing on
the incredible attempts to suppress the vote through new
identification requirements and limits on registration and
early voting. I was here for the passage of the Voting Rights
Act of 1965, and I consider these new State laws, many of them,
a direct threat to our democratic process and the very fabric
of our Nation.
We have not yet had a hearing, a single serious discussion
about real comprehensive immigration reform or what steps we
can take to invest in young people brought to the United States
through no fault of their own who want to pursue an education
or serve in our military.
We have done nothing to address the stunning rate of
incarceration in the United States, seven times that of the
rest of the world, 40 times that for our African American
population within the United States; 2.3 million Americans
behind bars is a sign of gross injustice let alone misuse of
funds and surely worthy of our discussion.
We have had hearings, briefings, and a contempt citation on
the floor targeted at Operation Fast and Furious but we have
not yet held a single hearing in the Committee to address the
flood of weapons trafficking across our borders and into
Mexico, not a single discussion about gun violence in this
country, the scourge of which claims 33,000 lives every year,
one minor every hour.
And so I urge my colleagues to the best extent that we can
to put aside the partisan rhetoric and return to the people's
business in this hearing and in this Committee. And I thank you
Chairman Smith.
Mr. Smith. Thank you, Mr. Conyers. I will proceed and
introduce our witnesses. And our first witness is Senator Mike
Lee of Utah. Senator Lee was elected in 2010 as Utah's 16th
Senator. He is a member of the Senate Judiciary Committee where
he serves as Ranking Member of the Antitrust, Competition
Policy and Consumer Rights subcommittee. He is also on the
Energy and National Resources, Foreign Relations, and Joint
Economic Committees. Before his election to the Senate, Senator
Lee had an impressive legal career, both in private practice
and in public service. He worked as a law clerk for Judge Dee
Benson of the U.S. District Court for the District of Utah and
for Justice Samuel Alito both on the U.S. Court of Appeals for
the Third Circuit and the Supreme Court. Senator Lee also
served as an Assistant U.S. Attorney in Salt Lake City and
General Counsel to Governor Jon Huntsman of Utah.
Our second witness, Lori Windham, is a Senior Counsel with
the Becket Fund for Religious Liberty. Ms. Windham has
represented a variety of different religious groups, including
cases under the Free Exercise Clause, Establishment Clause and
the Religious Freedom Restoration Act. Ms. Windham is a
graduate of Abilene Christian University and Harvard Law
School.
Our third witness, Michael Gerhardt, is the Samuel Ashe
Distinguished Professor of Constitutional Law and Director of
the Center on Law and Government at the University of North
Carolina. Professor Gerhardt's specialties include
constitutional conflicts between Congress and the President.
Professor Gerhardt has participated in the Senate confirmation
hearings for five of the nine justices currently sitting on the
Supreme Court. He has previously served as Dean of Case Western
Law School, taught at Wake Forest and William and Mary Law
Schools and been a visiting professor at Cornell and Duke Law
Schools.
Our final witness, Lee Casey, is a litigation partner at
the law firm of Baker Hostetler. After graduating from the
University of Michigan Law School, Mr. Casey clerked for the
Honorable Alex Kozinski, the Chief Judge of the United States
Court of Federal Claims. From 1986 to 1993, Mr. Casey served in
various capacities in the Federal Government, including the
Office of Legal Policy and the Office of Legal Counsel at the
Department of Justice. He also worked as the Deputy Associate
General Counsel at the U.S. Department of Energy. He served as
a member of the United Nations Subcommittee on the Promotion
and Protection of Human Rights from 2004 through 2007.
Welcome to all of our witnesses today. And Senator Lee, if
you will begin.
TESTIMONY OF THE HONORABLE MIKE LEE (R-UT),
UNITED STATES SENATOR, STATE OF UTAH
Senator Lee. Chairman Smith, Ranking Member Conyers and
other Members of the Committee, I thank you for the opportunity
to testify before this distinguished body today on an issue
that is at the heart of our Constitution's structure, the
essential duty of the legislature to ensure that the executive
branch does not exceed its rightful authority.
Now, at the outset I want to point out I don't want to wade
into a dispute between the Chairman and the Ranking Member. My
purpose here today is to discuss the concerns of the founding
generation, to discuss the concerns embodied in the
Constitution itself. The founding generation, including the
authors of the Federalist Papers, made clear that they
understood based on their colonial experience with Great
Britain that there was great potential for abuse in the chief
executive. Consequently the Founding Fathers put together a
document that put numerous checks on Executive power to make
sure that this power wouldn't be used excessively or as they
origin referred to it abused.
Alexander Hamilton referred repeatedly in the Federalist
Papers, most notably in Federalist 66 and in Federalist 77, to
what he himself referred to as an abuse of power. He used that
term sometimes not just as a legalistic term to describe what
might have been perhaps a criminal violation of law, but also
to describe an excess of power, one that might be offensive to
the legislative branch. He made clear that it was not only the
right but also the duty of the legislative branch to make sure
that any such excesses of power were responded to appropriately
by the legislative branch in order to protect the legislative
branch's own prerogatives.
So again, our discussion today about Executive power is a
timely one. In recent decades we have witnessed the executive
branch claim for itself more and more power. But this trend has
arguably reached a new disturbing level under the current
Administration. President Obama has treated the Constitution's
separation of powers principles as if those principles were
matters of convenience that may simply be ignored when they
happen to get in the way. Rather than cooperating with Congress
or respecting the Constitution's separation of powers he has in
many instances chosen to go it alone. And in the process he has
expanded the proper boundaries around Executive power
boundaries that were put in place for a reason.
The framers were very well versed in the dangers of
excessive government power. With the abuses of King George III
fresh in their minds they drafted the Constitution so as to
provide each branch with the necessary means and the personal
motives to resist the encroachments of the other branches of
government. Among the means the Constitution affords Congress
to check the President's power and ensure that he faithfully
executes his responsibilities is the right to withhold consent
to the President's judicial and executive branch nominations.
Article II, Section 2 of the Constitution provides that the
Senate must give its advice and consent to the President's
appointment of such persons. Congress also has an essential
oversight role with respect to the executive branch. When
executive officials make mistakes or exercise poor judgment,
internal procedures will sometimes but not always remedy the
problem. Inherent in our Constitution's system of checks and
balances is the need for Congress to have access and visibility
into the executive branch's administration of our laws to help
ensure the proper functioning of the Federal Government.
Congress must also ensure that the executive branch does not
usurp legislative power.
Article I, Section 1 grants Congress all legislative
powers. When an Administration agency makes broad legislative
rules or when it enacts regulations that contravene Federal
policy as embodied in Federal statute the executive branch
violates Article I of the Constitution.
I would like to briefly discuss just a few instances in
which President Obama has exceeded the Constitution's
boundaries.
On January 4, 2012, President Obama made four controversial
executive appointments even though the Senate had refused to
give its consent for one of those appointments and had no
opportunity to consider the others. The President asserted that
these appointments were made pursuant to the Constitution's
recess appointments clause, even though the appointments
occurred at a time when the Senate did not consider itself in
recess and even though the Constitution expressly grants the
Senate and Congress generally the power for each body to set
its own internal rules, including its own schedule.
Even more troubling, in justifying its unconstitutional
recess appointments the President relied on the Department of
Justice Office of Legal Counsel memorandum which asserted that
the President may unilaterally decide when the Senate is and is
not in session for purposes of the recess appointments clause.
President Obama's appointments were no different in kind--they
were indeed different in kind than previous recess appointments
made by any President of either party. It is often
controversial when a recess appointment is made. But this kind
of recess appointment, one made when the Senate did not
consider itself in recess, is not one of those appointments.
No President has ever unilaterally appointed an executive
officer during an adjournment of less than 3 days as determined
by the Senate's own rules. Neither to my knowledge has a
President of either party ever asserted the power to determine
for itself when the Senate is or is not in session.
Another examine of President Obama's refusal to respect the
Constitution's separation of powers occurred when he improperly
asserted executive privilege in response to a legitimate
congressional inquiry related to Operation Fast and Furious.
Now, courts have recognized two different types of
executive privilege. There is executive process privilege and
the presidential communications privilege. The deliberative
process privilege does not apply in this instance with respect
to the Fast and Furious investigation because government
misconduct here is misleading Congress in a February 2011
letter that asserted that the Administration did not allow gun
walking is the basis for Congress' request for documents. And
the privilege disappears altogether when there is any reason to
believe government misconduct has occurred. That is according
to the standards set by the U.S. Court of Appeals for the
District of Columbia Circuit.
With respect to the presidential communications privilege
the executive branch may assert that privilege only for
communications made in operational proximity to the President,
communications at a level close enough to the President to be
the revelatory of his deliberations or to pose a risk to his
advisers. Accordingly either high-level Administration
officials were involved in misleading Congress or the White
Houseis improperly asserting executive privilege.
President Obama again abused Executive power when earlier
this year he announced that he would stop enforcing key
provisions of the Immigration Nationality Act. Specifically, he
issued an Executive order providing that illegal immigrants who
meet certain qualifications may apply for work permits.
President Obama sought to justify this abuse of Executive power
by claiming that he may properly rely on the notion of
prosecutorial discretion. But prosecutorial discretion is
something different than what happened here. That refers to the
concept that the government may or may not be able to enforce
the law with respect to each and every instance of a violation
of the law. What happened here isn't that. Here the President
outlined entire categories of individuals who while violating
the law may nonetheless receive the express blessing of the
Federal Government to remain here and work in violation of our
laws.
One of the reasons this is disturbing is because Congress
had in fact specifically considered legislation that would have
had this effect. That legislation was rejected by Congress. It
didn't pass. The President nonetheless decided to go it alone
and to implement this policy by means of an Executive order,
thus usurping the proper role of the legislative branch.
As these examples demonstrate, when faced with opposition
from Congress President Obama has repeatedly sought to go it
alone. It is thus all the more necessary and important that
Congress continue to exercise its constitutional role and to
check this President's abuse of power wherever it sees that
occurring.
Mr. Smith. Thank you, Senator Lee.
[The prepared statement of Senator Lee follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Smith. Ms. Windham.
TESTIMONY OF LORI WINDHAM, SENIOR COUNSEL, THE BECKET FUND FOR
RELIGIOUS LIBERTY
Ms. Windham. Mr. Chairman and distinguished Members of the
Committee----
Mr. Smith. Let me make sure your mike is on.
Ms. Windham. Mr. Chairman and distinguished----
Mr. Smith. It is still not working.
Ms. Windham. Mr. Chairman and distinguished Members of the
Committee, thank you for the invitation and the opportunity to
be with you today to offer testimony on the Obama
administration's abuse of power in violating Americans'
religious freedom.
I am here today representing the Becket Fund for Religious
Liberty, where I serve as senior counsel. At the Becket Fund we
protect religious freedom for all religious traditions,
including Buddhists, Christians, Hindus, Muslims, Jews and
others.
I will summarize my remarks and ask that my full written
testimony be entered into the record.
Nearly a year ago, on October 5, I sat with my colleagues
before the United States Supreme Court. We were there to argue
that churches and synagogues have a constitutional right to
choose their clergy according to religious principles and not
government regulations. I was not alone in being shocked when
the Obama administration's lawyers stood up to oppose us and
argued that churches are no different than bowling clubs; that
our First Amendment guarantee of religious freedom does not
protect religious organizations. We said that this would be a
clear breach of the First Amendment and a power grab by the
executive branch. The Supreme Court agreed. As you know, the
justices ruled in our favor unanimously. In a 9-0 decision in
Hosanna-Tabor v. EEOC the Supreme Court rejected the
Administration's arguments and called them extreme. But I am
saddened to report that this Administration's overreach and its
attempt to redefine the limits of our religious liberty did not
end or begin with Hosanna-Tabor.
Unfortunately, this Administration has kept us very busy.
At the Becket Fund we call them as we see them and that means
we are on the same side as the Department of Justice when they
get it right and we oppose them when they get it wrong, and
today they are getting it wrong. The ability of millions of
Americans to practice their faith is now at risk. If the
government can trample First Amendment freedoms then none of
our fundamental rights are secure.
Last summer the Administration, acting pursuant to the
Affordable Care Act, issued a regulation requiring all employer
health plans to provide contraceptives, sterilization and
abortion causing drugs. Much has already been said before this
Committee about that mandate and the constitutional problems
with it. Because the mandate violates both the Religious
Freedom Restoration Act, RFRA, and the Constitution the Becket
Fund filed the first lawsuit in the Nation challenging the
mandate on behalf of Belmont Abbey College in North Carolina.
Since then at least 22 additional lawsuits have been filed. And
the Becket Fund has filed five more legal challenges on behalf
of Colorado Christian University, Eternal Word Television
Network, Ave Maria University, Wheaton College, and just this
morning Hobby Lobby, a family owned retail chain that faces
nearly half a billion dollars in fines for following its faith.
These religious individuals and organizations must now choose
between following their faith and paying a government fine.
That is a choice no American should have to make.
Not only has the Administration restricted religious
freedom, it used questionable tactics both to create the
mandate and then to insulate it from judicial review. The
Administration issued the mandate without first publishing a
proposed regulation or accepting public comment as Congress
requires of it under the Administrative Procedures Act. When
the Administration finally did take public comments on the
mandate it refused to budge.
What the Administration did do in response was to attempt
to delay any judicial scrutiny of its actions until after
November 2012. First, the Administration created a 1-year safe
harbor for some nonprofit religious organizations. Then it
proposed an alleged compromise, an inadequate compromise, and
used that proposal to try and keep the mandate out of court.
The government has treated both its proposed new rule and its
safe harbor guidelines as a moving target altering and
manipulating them as needed to avoid judicial scrutiny of the
mandate. Six months after the announcement the government
refuses to publish a proposed rule or say when it might do so.
The government has also changed the safe harbor three times in
7 months in order to avoid defending lawsuits against it.
This Administration has paid lip service to the importance
of religious freedom while at the same time launching an
unprecedented governmental encroachment on a fundamental right.
When it comes to the First Amendment the Administration should
not be saying one thing and then doing another. Protecting
religious freedom, as we well know at the Becket Fund, often
means defending people who disagree with you. If these abuses
are permitted to continue they will set a terrible precedent
for even more serious restrictions on liberty. Every American
should be concerned regardless of their political or religious
beliefs.
Mr. Smith. Thank you, Ms. Windham.
[The prepared statement of Ms. Windham follows:]
Prepared Statement of Lori Windham, Senior Counsel,
The Becket Fund for Religious Liberty
Mr. Chairman and distinguished Members of the Committee, allow me
to thank you for the invitation and opportunity to be with you today to
offer testimony on the Obama Administration's abuse of power in
violating Americans' religious freedom.
I am here today representing The Becket Fund for Religious Liberty,
where I serve as Senior Counsel. At the Becket Fund, we protect
religious freedom for all religious traditions, including Buddhists,
Christians, Hindus, Jews, Muslims, Sikhs, and others. I will summarize
my remarks and ask that my full written testimony be entered into the
record.
i. introduction
Nearly a year ago, on October 5th, I sat with my colleagues before
the United States Supreme Court as we argued that churches and
synagogues have a constitutional right to choose their clergy according
to religious principles, without government interference. I was not
alone in my shock when the Obama Administration's lawyers opposed our
position by arguing that churches are no different than bowling clubs,
and that our First Amendment guarantee of religious freedom does not
protect religious organizations. In fact, the position taken by the
Administration was so extreme that several Justices criticized the
argument from the bench, calling it ``extraordinary'' and ``amazing.''
The government stood before the Supreme Court and argued that it could
control the hiring decisions of religious institutions. We said that
this would be a clear breach of the First Amendment, and a power grab
by the Executive Branch.
The Supreme Court agreed. As you know, the Justices ruled in our
favor unanimously. In a 9-0 decision, the Supreme Court rejected the
Administration's arguments and its attempt to regulate how religious
organizations choose their leaders, calling its position ``extreme.''
But I am saddened to report that the overreach of this Administration
in redefining the limits of religious liberty in this country did not
end--or even begin--there.
The Becket Fund for Religious Liberty is a non-profit organization
which, for the past eighteen years, has worked to defend the religious
liberty rights of people of all faiths. Our work crosses political and
religious lines and focuses on the constitutional and legal guarantees
enshrined in our founding, guarantees that enable every American to
live with the dignity they deserve. We call them as we see them, and
sometimes that means we side with the government and sometimes we
don't. We've been on the same side as the Department of Justice where
they get it right and oppose them when they get it wrong.
Unfortunately, this Administration has kept us very busy. And
``unfortunately'' is actually not strong enough a word, because the
ability of millions of Americans to live according to the dictates of
their consciences is now at risk. If the government can trample First
Amendment freedoms, then none of our fundamental rights are secure.
I would like to share a few of the cases where the Becket Fund has
been fighting back against overreach by the Administration.
ii. the administration's attempt to trample religious freedom
in hosanna-tabor v. eeoc
In the recent U.S. Supreme Court case, Hosanna-Tabor Evangelical
Lutheran Church and School v. EEOC, which I referred to at the
beginning of my testimony, the Becket Fund sought to protect the
Lutheran church's ability to hire and fire religion teachers according
to the teachers' ability to represent the Church's religious message.
The doctrine at issue--the ``ministerial exception'' doctrine--is one
that has long existed in our religious freedom jurisprudence. It
springs from the well-settled understanding that our Constitution
protects religious groups from government interference, including and
perhaps especially when it comes to matters of internal governance and
religious autonomy. Another way to put it is this: If the separation of
church and state means anything, it means that government officials
shouldn't be in the business of picking priests and rabbis.
Yet the Obama Administration in Hosanna-Tabor veered far off the
path of established precedent. It argued that the First Amendment
provides no special protection to religious organizations in the
selection of their own clergy. This position was so drastic that
Supreme Court Justices called it ``untenable,'' ``remarkable,'' and
``extreme.'' All nine Justices agreed that the Administration's
position had to be rejected
The Becket Fund won a unanimous victory in Hosanna-Tabor and sent a
strong message to the Administration that it could not tell a church
whom it should choose to teach its beliefs.
But apparently the Administration did not get the message.
iii. the administration's attempt to trample religious freedom under
the hhs contraception mandate
Last summer, the Administration, acting pursuant to the Affordable
Care Act, issued a regulation requiring all employer health plans to
provide contraceptives and abortion-causing drugs. That regulation,
``the Mandate,'' applies to most religious organizations that are
opposed to contraception or abortion, and to many business owners who
want to ensure their practices are consistent with their faith. The
Administration's actions were met with public uproar, with religious
groups opposed to contraception or abortion decrying the violation of
their religious freedom.
A. The Mandate's Lack of Protection for Religious Freedom
Although the Mandate is riddled with exceptions--exceptions for
certain religious organizations, exceptions made for convenience or
expediency--the Administration has stubbornly refused to create an
exception that would protect thousands of religious organizations and
individuals who cannot follow both the Mandate and their faith.
The Mandate has a very narrow religious exception. The Mandate
exempts certain religious employers, but it defines ``religious
employers'' so narrowly that millions of employers who are inspired by
and implement their faith through their work have been left
unprotected. Indeed, the exception is so narrow that even Mother
Theresa would not have qualified as a ``religious employer.'' For
example, the exception requires that an employer primarily employ and
serve people of their own faith. This has effectively penalized those
who express their faith by serving the community at large. The same
religious organizations that help the government in fulfilling the
essential needs of all Americans are now being forced by the
Administration to choose between following their faith or facing hefty
fines for non-compliance with the government's Mandate.
The Mandate also applies with full force to businesses that are
religiously-oriented or owned and operated by religious individuals.
The government has effectively said that you forfeit your free exercise
rights when you open a business. But in the only decision on the merits
of the Mandate to date, a Colorado federal district judge disagreed.
The government argued that businesses, even small family businesses,
have no constitutional or statutory protections for religious freedom.
The judge rejected this argument and issued an injunction against the
Mandate.
The assault on religious liberty the Mandate represents is
unprecedented. Until now, federal policy has generally protected the
conscience rights of religious institutions and individuals in the
health care sector. Moreover, Democratic congressman Bart Stupak, when
offering the critical vote that enabled the health care bill to become
law, reaffirmed his belief in the President's assurances that the
conscience rights of Americans would be secure. As it happened, he was
completely mistaken.
The government Mandate is also far broader than any state
contraception mandate to date. At least 22 states have no contraception
mandate at all. Of the 28 states that have some mandate, none require
contraception coverage in self-insured and ERISA plans, and the vast
majority exempt plans for other reasons as well. The Mandate ends those
exemptions and forces organizations that were exempt from state
mandates to comply with the federal Mandate.
Because the Mandate violates both the Religious Freedom Restoration
Act (RFRA) and the Constitution, the Becket Fund filed the first
lawsuit in the nation challenging the Mandate, on behalf of Belmont
Abbey College in North Carolina. Since then, the Becket Fund has filed
four more lawsuits on behalf of Colorado Christian University, Eternal
Word Television Network, Ave Maria University, and Wheaton College. At
least twenty-three additional lawsuits, brought by a wide variety of
religious organizations, are currently pending in federal courts across
the country.
B. The Government's Attempts to Circumvent Both the Administrative
Procedure Act and Judicial Scrutiny
Not only has the Administration restricted religious freedom, it
has used questionable tactics to create the Mandate and insulate it
from judicial review. The Administration issued the Mandate without
first publishing a proposed regulation or accepting public comment, as
is required by Congress under the Administrative Procedure Act. The
Administration claimed the ability to subvert and radically accelerate
the normal APA procedures because of the great importance of the
regulation. It accepted comments on the rule only after it was put into
place, and it has refused to rescind the rule or expand the narrow
religious employer exemption as a result of those comments.
Predictably, this example of executive overreach caused a great
public outcry. Rather than revise or rescind the Mandate, the
Administration has responded to the complaints of hundreds of thousands
of objectors with a series of inadequate measures. First, the
Administration announced that while it would not expand the religious
employer exemption, it would give certain non-profit religious groups
an extra year to comply with the Mandate. This so-called ``safe
harbor'' meant that such religious groups would have one more year to
decide whether to comply with the Mandate and violate their faith, drop
health care insurance coverage for their employees altogether and incur
a hefty fine, or try to offer non-compliant insurance and incur even
larger fines.
Second, when this did not end the public protest against the
Mandate, the President announced a supposed compromise. He promised
that in a rule yet to be developed, insurance companies--not the
religious employers themselves--would be forced to pay for the
abortion-inducing drugs, sterilization, and contraception. In March,
the Administration issued an Advance Notice of Proposed Rulemaking
(ANPRM), in which it suggested ``potential means of accommodating''
religious organizations subject to the Mandate. However, the
administration's proposed ``accommodation'' fails in many important
respects.
The first problem is that it leaves out many entities that should
be protected. It is limited to non-exempt, ``non-profit religious
organizations.'' Although the Administration does not say how it
intends to define ``religious organizations,'' it suggests that the
definition should be limited to churches or tax-exempt organizations
that are ``controlled by or associated with a church or a convention or
association of churches.'' Under the definition (and other alternative
definitions), a small business owner will not be covered by the
accommodation because she is a not a non-profit. Similarly, a non-
profit, non-religious organization dedicated to caring for women in
crisis pregnancies will not be covered by the proposed accommodation,
nor will fraternal organizations, religious colleges, or parachurch
ministries, which are not ``controlled by or associated with a church
or a convention or association of churches,'' be covered.
An even deeper problem with the proposed ``accommodation'' is that
it does not actually relieve the burden on many of the religious
organizations that qualify for the accommodation. Under the proposals
outlined in the ANPRM, religious organizations will still be obligated
to assist in providing these drugs and services by providing their
insurers with the information and authorizations necessary to provide
these drugs. The ANPRM does not offer any adequate solution for self-
insured organizations, who must otherwise pay for these drugs out-of-
pocket. The proposals in the ANPRM for dealing with self-insured
organizations range from impractical to illegal, and have been
criticized by an industry group, the Self-Insurance Institute of
America, on this basis.
Worse yet, the government has treated both the ANPRM and its safe
harbor guidelines as a moving target, altering and manipulating them as
needed to avoid judicial scrutiny of the Mandate. Although the
government has offered suggestions for a new regulation in the ANPRM,
it has not yet published a proposed rule, and has repeatedly used the
tentative nature of the ANPRM to avoid judicial review of the rule
already in place. The government has argued, in some cases
successfully, that courts should not review the existing Mandate
because the forthcoming rule might change its impact on those
challenging the Mandate. But nearly six months after the ANPRM, the
government still refuses to state what that new rule is going to look
like.
The government's manipulation of the safe harbor guidelines has
become even more transparent over time. First, the government has
promised not to enforce the Mandate for a year, but it has refused to
exempt religious organizations from private enforcement. That means
that religious organizations may face lawsuits in the coming year from
private individuals who object to their policies. Second, the
government's safe harbor guidance document indicates that employers who
object to some, but not all, forms of contraception are not eligible.
But the Administration has since stated in court papers that those
organizations are eligible for the safe harbor. Third, just last month,
the government quietly revised the safe harbor to cover some additional
organizations. It did this because it faced a lawsuit from Wheaton
College, which was not eligible under the original safe harbor. Time
and again, the government has changed the rules in order to insulate
the Mandate from judicial review. But there is one rule they won't
change: forcing religious organizations to pay for drugs contrary to
their religious beliefs.
C. The Mandate's Threat to Religious Liberty
Congress has made it clear that federal laws, including the
Affordable Care Act, should not compromise religious freedom. But the
Administration has trampled upon that guarantee time and time again.
The Administration has ignored the intentions of Congress and
restricted the rights of religious individuals and organizations. In
doing so, it has violated the Constitution, ignored the Congressional
command of RFRA, and endangered the rights of millions of Americans
seeking to work, worship, and serve others.
iv. conclusion
The Administration has paid lip service to the importance of
religious freedom, while at the same time launching an unprecedented
government encroachment on the fundamental right of religious freedom.
When it comes to the First Amendment, the Administration should not be
saying one thing and doing another. Protecting religious freedom often
means defending the rights of people with whom you disagree. If these
abuses are permitted to continue, they will create grave injustice and
set a terrible precedent for even more serious restrictions on liberty
in the future. Every American should be concerned, regardless of
political or religious beliefs.
__________
Mr. Smith. Mr. Gerhardt.
TESTIMONY OF MICHAEL J. GERHARDT, PROFESSOR OF CONSTITUTIONAL
LAW AND DIRECTOR, CENTER ON LAW AND GOVERNMENT, UNIVERSITY OF
NORTH CAROLINA
Mr. Gerhardt. Thank you, Mr. Chairman and Ranking Member
Conyers and Members of the House Judiciary Committee. It is
always an enormous privilege and honor for me to have the
opportunity to meet with you and to speak with you and I
greatly appreciate the invitation. I should tell you as a
constitutional law professor nothing has greater meaning for me
than the opportunity to be able to be of service to this
Committee and to government in general.
You have my written statement and I won't rehash it here.
Instead I would just like to try to make two observations, and
I would be happy to take any questions you have later.
The first observation I make again is as a constitutional
law professor, and I simply want to state that I take great
heart in a robust system of checks and balances. I have for
many years believed in the system of checks and balances and I
heartily uphold and support Congress and this Committee's
strong assertion of its prerogatives. I believe that this
Committee has the ability and the power to exercise oversight
and to strongly push the President to defend the constitutional
basis for his actions.
At the same time I believe that the President has the
ability to strongly defend his actions and to strongly support
his actions and to strongly push back against any inquiry into
either the motivations or support for his actions. That is what
makes for a system of checks and balances. It is the give and
it is the take, it is the back and it is the forth. And in this
system of checks and balances I might point out there are many
different facets. One of them is today's hearing. Another one
is fast approaching, and that is the presidential election. And
I should just point out that on every single one of these
matters that are being discussed today the President stands
politically accountable before the American people in just a
matter of weeks. That check is not insignificant and I think it
should be something that we all might want to take into account
in the course of determining the next issue I want to mention,
and that is how do we determine whether or not there is an
abuse of power.
I don't take that lightly. I am sure none of us do. The
question of whether or not a President or his Administration
abuses power is about as serious a question as can ever be
asked, not just in constitutional law but in law generally. I
don't think you can answer that question by asking whether or
not you agree with what the President did. There just simply
are too many things that a President does, countless numbers of
things that a President does, to allow agreement or
disagreement with a particular decision as the basis for
determining whether or not there is abuse of power.
Also, I think you must ask a different question. Imagine
for example if this were a President from your party what would
you say. What would be the test if, for example, you were
Republican and this were a Republican President? Would you
still think there were abuses of power? Or reverse the sides.
Exchange them. See where you come out. If you come out the same
place that means something. If you don't come out the same
place that also has meaning.
I think there is other sets of questions we should ask as
well. For example, I think we should ask has the President and
his Administration acted in good faith. Has he and his
Administration been transparent and open and deliberative in
the process of making decisions about recess appointments,
executive privilege and every other matter that we will discuss
today. Other questions we could ask include what are the bases
for the President's judgments? Do they have a basis in past
practices, do they have a basis in judicial precedent, do they
have a basis in a balancing of the different consequences
involved in the decision? These are all questions I think that
are perfectly reasonable to ask, and these are the kinds of
questions I think we should be asking in determining whether or
not there has been any kind of abuse of power.
For myself I think it is pretty obvious that there has been
no abuse of power. I believe in answering those questions that
you can find that the President has been both transparent, open
and deliberative and reasonable. Of course we could disagree,
but that again is not the matter. For me the issue is whether
or not I can have confidence in the process by which he has
made those decisions and by which the Administration has made
its decisions in all the areas we are talking about, and my
answer today to that is yes.
Thank you.
Mr. Smith. Thank you, Mr. Gerhardt.
[The prepared statement of Mr. Gerhardt follows:]
Prepared Statement of Michael J. Gerhardt, Samuel Ashe Distinguished
Professor of Law and Director of UNC Center on Law and Government,
UNC--Chapel Hill
I am honored by the invitation to participate in the House
Judiciary Committee's hearing, ``The Obama Administration's Abuse of
Power.'' It is always a great privilege to appear before this
Committee, and I appreciate the opportunity to share my perspective on
the important subject of your hearing. There is nothing more meaningful
to a constitutional law professor than the opportunity to be of service
to this institution on significant questions about the meaning and
scope of the Constitution.
I cannot imagine a topic of greater concern to the Congress, this
nation, and its citizens than the possibility (or fact) of a
president's or his administration's abuse of power. As you know, this
is not a new subject for me. For more than 20 years, I have studied the
impeachment process and presidential misconduct. I take the possible
occurrence of official misconduct quite seriously, and I have thought
long and hard--and written one book and numerous articles--on the
constitutional issues arising from the misconduct of high-ranking
officials, including the President.
Although I have had the privilege of advising members of Congress
on various issues relating to official misconduct in the past, I of
course speak today only for myself and not for anyone else or my home
institution, the University of North Carolina, where I have the
privilege of teaching constitutional law and professional
responsibility.
Given that I did not receive your invitation until Tuesday morning
and my uncertainty over the particular matters you will be reviewing at
this hearing, I thought the best way I could help you is to share with
the Committee the two, fundamental principles that guide my thinking
about the possibility of this President's or this administration's
possible abuses of power. I know we agree about these principles, but I
thought it might still be useful to make them explicit beforehand.
The first guiding principle is recognizing and abiding by the all-
important distinction between politics and the Constitution. I say
``all-important'' because it is so easy to forget and confuse political
with constitutional choices. Yet, they are distinct, even though they
frequently overlap. For years, many scholars rightfully criticized the
Supreme Court for sometimes confusing political decisions with
constitutional law; they argued, persuasively I thought, that the Court
should not strike down a political decision with which it disagreed but
only those things that violated the Constitution. A similar principle
applies to presidents, or, for that matter, members of this august
institution: The fact that we disapprove of something does not make it
unconstitutional. Not every action with which we might disagree, or
with which we might disapprove, is unconstitutional. Most of what a
president does involves political choices; it involves making choices
about policy. I do not come before you to discuss politics or policy,
and I have nothing to say about the President's political choices, nor
any of yours, except to say that the Constitution allows for national
political leaders to make a wide range of political, even partisan,
decisions.
As we consider the possible abuses of power that the President, or
people under his direction, may have made, we cannot ignore the timing
of today's hearing. Charging any president or administration with abuse
of power is serious business, and the timing of today's hearing, with a
presidential election just weeks away, may lead many people to wonder
why now. Some people may even believe that there are political
incentives, or motivations, for conducting such an inquiry at a time
like this. My reverence for this institution precludes me from agreeing
with this criticism. But, at the same time, my reverence for this
institution leads me to suggest, with all due respect, that you take
the time to explain your timing, you maintain your focus on the
Constitution, and you do what you can to ensure the hearings do not
deviate from a legitimate constitutional inquiry into political
theater.
Once we focus on the Constitution, at least one thing should become
glaringly clear: Presidents, like members of Congress, make
constitutional choices all the time, and many people within their
administrations are of course charged with implementing or assisting
them in making those choices. The fact that a president's
constitutional choices have political ramifications does not make them
political or purely partisan acts. Nor should those ramifications be
confused with the arguments that support, or oppose, the constitutional
judgments in question. Moreover, the fact that a president makes a
constitutional choice different than the one that you or I would have
preferred does not make it unconstitutional. An important consideration
for me is not whether I agree with a president's constitutional choices
but rather whether I think they have been made in good faith. To assess
whether they have been made in good faith, we can examine the
President's transparency and candor in making constitutional judgments.
I believe that this President, like most presidents, has made his
constitutional reasoning quite openly and deliberately, and on that
basis, at least, I cannot take issue with how he has handled his
constitutional responsibilities.
If you disagree that a demonstration of good faith in making
constitutional judgments is not enough, inconsequential, or perhaps
irrelevant, I can suggest another, possibly more effective test:
Consider whether you would think what the President did was
unconstitutional if he were a member of your party. Thus, I think we
can all agree that Richard Nixon's ordering the IRS and FBI to
investigate his political enemies was an abuse of power. It was not an
abuse of power because he was a Republican. It does not matter whether
he was a Republican. It should not matter that President Obama is a
Democrat or running for reelection. What should matter, in my judgment,
is whether Democrats or Republicans on the Committee would make the
same charges, or raise the same defenses, regardless of the President's
party.
You may use this same test for any of the officials whose legal or
constitutional judgments you may question. I know many members of this
Committee may not, for instance, agree with the President's, the
Attorney General's, and the Office of Legal Counsel's judgment that
executive privilege may be extended to cover documents that were
produced in internal deliberations within the executive branch. Would
you reach the same conclusion and hold the same kind of hearing if the
President, the Attorney General, and the Office of Legal Counsel had
different political affiliations? The judgment about whether executive
privilege applies is, at bottom, a constitutional choice, albeit one
that obviously has political ramifications. I think there is credible
support for the President's and administration's judgment on executive
privilege, including historical and judicial precedents, and this
credible support would exist, regardless of the President's party or
the political affiliation of the people who lead his Justice
Department.
The second principle I follow is affirming the Constitution's
establishment of a robust system of checks and balances. I believe that
the Constitution vests Congress with substantial responsibilities,
including oversight. In virtually all of my publications and prior
testimony before Congress, I have expressed this belief, indeed, this
conviction. You certainly have the power and opportunity to second-
guess the President's constitutional choices, and of course you may
subject him or other department heads to rigorous oversight. You may
urge close scrutiny of the constitutional and legal judgments of these
officials and question them. At the same time, the President
undoubtedly has the authority by virtue of the Constitution, and I
believe the prerogative, to push back, to defend himself, to explain
his constitutional reasoning and of course to stand his ground. For
example, many of you may argue that Congress and Congress alone has the
authority to determine when a recess occurs, including how long it may
last. At the same time, the President may argue that he is not bound by
this judgment, just as President Andrew Jackson argued that he was not
bound by the Supreme Court's decision in McCulloch v. Maryland because
he was entitled, by virtue of his oath, his election, and his stature
within the constitutional scheme, to make his own, unilateral judgments
about the Constitution's meaning and scope. President Obama is
entitled, in my opinion, like Jackson, Lincoln, and every other
president, to make independent constitutional judgments, just as each
of you is entitled to push him hard to defend or explain those
judgments.
As a constitutional law professor, I appreciate the robust system
of checks and balances the founders gave us in the Constitution.
Today's hearing is plainly an exercise in checks and balances in
practice. Of course, this system does not always require, or entail,
conflict, but conflict is inevitably a dynamic within it. Another,
critical feature of this system is the accountability of the officials
who serve in our government: High-ranking executive officials serve at
the pleasure of the President and are subject to congressional
oversight and subject to the impeachment process, and national
political leaders are all electorally accountable. The same check
applies to congressional and presidential overreaching--the fact that
members of Congress and the President require the public's approval in
order to continue in office. Ours is of course a government of laws not
men (or women), which means that everyone who serves in government
should abide by the law and is subject to the accountability that the
law--the Constitution--provides. Whatever you may think of the
President's constitutional choices, he now stands politically
accountable for all of them before the American people. This is true
for recess appointments and every other matter we may discuss at
today's hearing. For, as you well know, it is not just constitutional
law professors, members of Congress, or presidents who get to interpret
the Constitution and debate its meaning; the American people get to do
that as well. Indeed, I think that is a major reason we are here
today--to educate the public. I expect that the Constitution will be
discussed a good deal over the next several weeks. I look forward to
that discussion and to what it will teach us about the Constitution and
the President's constitutional record.
__________
Mr. Smith. Mr. Casey.
TESTIMONY OF LEE A. CASEY, PARTNER, BAKER HOSTETLER
Mr. Casey. Thank you, Mr. Chairman and Members of the
Committee. It is an honor to appear here today to discuss the
question of the abuse of presidential power. I should at the
outset note that I am speaking here on behalf of myself.
Strong Executive power is very much part of the
Constitution's design. However, the framers also established a
separation of powers between the President, Congress and the
courts. Although they anticipated conflicts between the
branches, they also expected a basic level of respect by each
branch for the other's legitimate authority. Unfortunately, the
Obama administration has broken with this tradition, most
especially in its disregard for the legitimate authority of
Congress.
The most troubling instances of unconstitutional behavior
involve the Administration ignoring clear statutory
requirements by claiming to exercise prosecutorial or
enforcement discretion, particularly in limiting enforcement of
the immigration laws for certain classes of individuals.
The President must take care that the laws be faithfully
executed. He has no power either to dispense with statutory
requirements in individual cases or to suspend the particular
law's operation. A legitimate exercise of prosecutorial
discretion ordinarily involves a determination whether a
particular individual or entity should be subject to an
enforcement action for past conduct. In this instance the
Administration has eschewed enforcement actions against whole
categories of persons whose violations are continuing.
In addition, legitimate prosecutorial discretion involves
resource allocation rather than direct challenges to Congress'
basic policy judgments as the Administration did in providing
young undocumented aliens much of the relief it championed as
part of the DREAM Act. The President must enforce the law as
adopted by Congress and must respect its policy choices until
changed through legislative action.
The Administration also ignored constitutional limits on
presidential appointments when the President made recess
appointments to the Consumer Financial Protection Board and the
National Labor Relations Board earlier this year. Recess
appointments are a narrow exception to the general rule
requiring Senate confirmation for high-level Federal officials.
Presidents have increasingly used this power to install favored
nominees in the face of Senate opposition. The Senate moved to
check this practice in 2007, choosing often to remain in
session on a pro forma basis during congressional adjournments.
The Administration argues that the Senate is not available to
receive an act on nominations during such sessions, but that
body has in fact conducted business, including passing
legislation, when it is convened pro forma. The Senate, not the
President, is the constitutional judge of what business can or
will be transacted during its sessions however brief. The
Senate's reliance on pro forma sessions to prevent recess
appointments may be frustrating to the President, as it surely
was to his predecessor, but he cannot arrogate to himself the
power to judge the adequacy of the Senate's rules.
The Administration has also acted to frustrate legitimate
congressional oversight of the ill-conceived Operation Fast and
Furious. The President asserted executive privilege with
respect to materials sought by Congress as part of its
legitimate oversight functions, materials which the House
Oversight Committee believes may have involved deliberate
misrepresentations to Congress. But executive privilege is
manifestly unavailable here. Because the President and his
immediate advisors deny any involvement the constitutionally
grounded presidential communications privilege does not apply.
The common-law deliberative process privilege also does not
apply where, as here, there is any reason to believe that
government misconduct has occurred. The Administration's
assertion of the privilege cannot be legally justified and
again reveals a determination to ignore or evade lawful limits
on Executive power.
Overall the Obama administration has disregarded some of
the most basic constitutional limitations on presidential power
in order to achieve its policy goals or to avoid congressional
scrutiny. Whether this is a deliberate effort to undercut the
role of Congress or simply impatience with political opposition
and legal constraint the result is the same; a direct and
sustained assault on the balance of power so carefully
constructed by the Constitution's framers.
Thank you.
Mr. Smith. Thank you Mr. Casey.
[The prepared statement of Mr. Casey follows:]
Prepared Statement of Lee A. Casey, Partner, Baker Hostetler
Thank you Mr. Chairman and Members of the Committee.
It is an honor to appear here today to discuss the very important
issue of the Obama Administration's abuse of presidential power. I
should note at the outset that I am speaking here on my own behalf.
I am a strong advocate of vigorous executive power, which I believe
was very much a part of the Framer's design for our Constitution.
Indeed, an examination of the records of the Constitutional Convention
makes clear that few questioned the need for a strong executive at the
heart of the new national government. Most of the discussion was
directed at what form that executive would take, what specific powers
it would enjoy, and how best to ensure that--once established--the
executive did not overstep the bounds of its proper authority.
The system the Framers ultimately adopted was one of separation of
powers, dividing power first between the federal government and the
States, and then among the executive, legislative & judicial branches
of government. Each of these branches was vested with different powers
and responsibilities and there is little doubt that the Framers
anticipated conflicts between the branches regarding the proper scope
of their respective authority and overall role in our system of
government. Indeed, it is in that very conflict that they saw the most
important guarantee of constitutional government and liberty.
Nevertheless, for all of the potential rivalries built into the
system, the Framers assumed a fundamental level of respect between and
among the three branches of government, and an appropriate deference to
the claims of each when operating at the core of their constitutional
role. And, by and large, this has been our national experience.
Congress and the Courts over time have deferred to the Executive Branch
in the formulation and execution of foreign policy, the President and
Courts defer to Congress in fiscal matters, and Congress and the
President defer to the Courts on questions of law.
Unfortunately, the Obama Administration has broken with this
tradition in several critical ways, most especially in its disregard
for the legitimate authority of Congress. In particular, focusing on
what I believe to be the most egregious examples, the Administration
has worked to undermine statutory requirements duly enacted by Congress
as the national legislature, it has ignored the limits on the
President's power to fill federal offices by recess appointment, and it
has worked to frustrated legitimate congressional oversight of its
activities. The Administration has done all of this in a manner that
goes beyond the normal cut and thrust of partisanship and politics,
evincing a marked impatience and even disdain for the Constitution's
limits on presidential power.
1. suspension of statutory requirements
By far the most troubling of the Administration's instances of
unconstitutional behavior involve ignoring clear statutory requirements
as a matter of supposed executive enforcement discretion. First among
these was its determination, in June 17, 2011, effectively to limit
enforcement of the immigration laws to undocumented aliens who have
committed other, criminal violations, followed more recently by the
Administration's grant of enforcement immunity to undocumented young
people who entered the United States as children.
The Constitution specifically requires that the President ``shall
take Care that the Laws be faithfully executed.'' U.S. Const. Art. II,
Sec. 3. This language was not surplusage. It represents one of the most
important constitutional limits on the executive power--the President
must enforce the laws enacted by Congress--and it is there for a very
good reason.
Two generations before our revolution, the British Crown claimed
the legal right to suspend enforcement of duly enacted statutes. This
was accomplished either through individually granted dispensations or
simply by suspending the law's operation across the board. This
dispensing/suspending power was claimed to be part of the king's
inherent ``prerogative,'' invested in the monarch as a necessary
attribute of executive power. These claims, were among the factors
which ultimately led to the ouster of King James II in the ``Glorious''
Revolution of 1688. Parliament, in other words, refused to be reduced
to the level of a mere debating society, unable to enact laws the king
was required to respect and enforce.
One hundred years later, the Constitution's Framers--with this
history very much in mind--made plain that no American president could
claim similar power, permitting nullification of the laws by simple
executive fiat. Such authority would, of course, cripple the very
separation of powers they hoped to achieve. As the Supreme Court noted
in an early case, where a presidential suspending power was suggested
(although not, significantly, by the incumbent President Martin Van
Buren):
This is a doctrine that cannot receive the sanction of this
court. It would be vesting in the President a dispensing power,
which has no countenance for its support in any part of the
constitution; and is asserting a principle, which, if carried
out in its results, to all cases falling within it, would be
clothing the President with a power entirely to control the
legislation of congress, and paralyze the administration of
justice.
To contend that the obligation imposed on the President to see
the laws faithfully executed, implies a power to forbid their
execution, is a novel construction of the constitution, and
entirely inadmissible.
Kendall v. United States, 37 U.S. 524, (1838).
Of course, it has long been recognized that the President and his
delegees may exercise a certain level of discretion in determining how
best to carry out his constitutional duty to enforce the laws, and
especially to establish his administration's enforcement priorities.
The courts have recognized this ``prosecutorial discretion'' as
legitimate, see, e.g., Nader v. Saxbe, 497 F.2d 676, 679 n.18, n.19,
and it is therefore hardly surprising that the Obama Administration has
characterized its most flagrant acts of suspension/dispensation merely
as exercises of such discretion. See Memorandum from Janet Napolitano,
Secretary of Homeland Security, June 15, 2012, Exercising Prosecutorial
Discretion with Respect to Individuals Who Came to the United States as
Children; Memorandum from John Morton, Director, U.S. Immigration and
Customs Enforcement, June 17, 2011, Exercising Prosecutorial Discretion
Consistent with the Civil Immigration Enforcement Priorities of the
Agency for the Apprehension, Detention, and Removal of Aliens.
There are, however, fundamental differences between the simple
exercise of prosecutorial discretion and the Administration's actions
here. First and foremost, a legitimate exercise of prosecutorial or
enforcement discretion ordinarily involves a determination whether a
particular individual or entity should be the subject of an enforcement
action for past conduct. In this instance, the Administration has not
merely concluded that prosecutions should be eschewed for existing
offenses, but that no enforcement action will be taken for continuing
and future ones. In other words, the beneficiaries of this
determination (defined on a categorical rather than individual basis)
are assured of immunity from legal consequences even though their
violations continue. This is not simple prosecutorial discretion, but
suspension of the law's operation with respect to this group.
Second, a legitimate exercise of prosecutorial discretion is about
priorities and resource allocation; it does not challenge and ignore
the basic policy judgments Congress' made in enacting the law at issue.
That, however, is precisely what the Administration did when it
announced that young undocumented aliens should not be the subject of
deportation proceedings. As Secretary Napolitano states unequivocally
in her June 15, 2012, memorandum,
Our Nation's immigration laws must be enforced in a strong and
sensible manner. They are not designed to be blindly enforced
without consideration given to individual circumstances of each
case. Nor are they designed to remove productive young people
to countries where they may not have lived or even speak the
language. Indeed, many of these young people have already
contributed to our country in significant ways. Prosecutorial
discretion, which is used in so many other areas, is especially
justified here.
In fact, rightly or wrongly, the immigration laws make no such
distinctions. Indeed, it is because current law does not provide relief
for youthful undocumented aliens that the Administration championed the
Development, Relief, and Education for Alien Minors Act of 2011 or
``Dream Act'' which would, if enacted, grant this relief
``notwithstanding any other provision of law,'' i.e., the preexisting
requirements of the Immigration and Nationality Act.
The President must enforce the law as adopted by Congress, and he
must respect the policy choices Congress has made. He cannot, true to
his office and oath, work to undermine or nullify the law simply
because he disagrees with those choices, and or seek to substitute his
own policy preferences and goals through administrative means. Such
changes must be sought and obtained from Congress. Granting assurances
to categories of individuals that otherwise applicable law will not be
applied to them is an ``entirely inadmissible'' act of suspension.\1\
---------------------------------------------------------------------------
\1\ The Administration, it must be noted, has taken similarly
impermissible actions with regard to other statutory schemes, including
work/training requirements in the 1996 welfare-reform law and strict
student testing and monitoring requirements in the 2001 ``No Child Left
Behind'' law. Although certain aspects of the Personal Responsibility
and Work Opportunity Act are subject to waiver, the federal work
requirements are not among them. Similarly, the ``No Child Left
Behind'' provides no authority for waivers from the relevant
requirements--which, of course, were at the very heart of the law.
---------------------------------------------------------------------------
2. ``recess'' appointments to federal office
The Constitution's requirement that the President appoint high
level federal officers ``by and with the Advice and Consent of the
Senate'' is another fundamental check on executive power ignored by the
Obama Administration when, at the beginning of this year, the President
made ``recess'' appointments to the Consumer Financial Protection
Bureau and National Labor Relations Board. The Framers adopted this
critical requirement to ensure the quality of federal appointees and to
defeat any drift towards presidential cronyism. As Alexander Hamilton
wrote in The Federalist:
It will be readily comprehended, that a man, who had himself
the sole disposition of offices, would be governed much more by
his private inclinations and interests, than when he was bound
to submit the propriety of his choice to the discussion and
determination of a different and independent body.
The Federalist No. 76 (A. Hamilton) 513 (Jacob E. Cooke ed., 1961). The
right to consider and approve or reject presidential nominees to the
very highest offices has, of course, traditionally been one of the
Senate's most jealously guarded authorities.
The Constitution does, of course, make one exception to this
general rule. The Framers did not expect that Congress would remain in
session for most of the year, and anticipated long periods of time
(counted in weeks and months) when the Senate would be unavailable to
play its advice and consent role in federal appointments. Their
solution was to permit the President to make temporary, ``recess''
appointments: ``The President shall have Power to fill up all Vacancies
that may happen during the Recess of the Senate, by granting
Commissions which shall expire at the End of their next Session.'' U.S.
Const. Art. II, Sec. 2, cl. 3.
Successive presidents have made full use of this power, and such
appointees have included agency heads, ambassadors, and even Supreme
Court justices. Recess appointees may serve until the end of the
Senate's next session and can, of course, serve longer if reappointed
after the Senate has given its consent upon their nomination. Justice
William Brennan, for example, was originally recess appointed by
President Eisenhower in 1956, and was then reappointed after the Senate
acted favorably on his nomination the next year. More recently,
presidents have used the recess appointment power to install in office
favored nominees even in the face of significant Senate opposition.
The Constitution does not, of course, define ``recess'' for
purposes of the President's recess appointment power, but the
Department of Justice's Office of Legal Counsel has advised successive
presidents that recess appointments are permissible in both
intersessional and intrasessional adjournments, so long as these are of
``substantial length.'' See Recess Appointments, 13 Op. O.L.C. 325
(1989). In that case, the recess in question was 33 days, but recess
appointments have been made during recesses of far shorter duration.
Nevertheless, in view of the purpose of this exception to the general
rule, a senatorial absence of more than a few days has been considered
the minimum necessary requirement to a legitimate recess appointment.
See e.g., 33 Op. Att'y Gen. at 25 (suggesting that a 5 or 10 day
adjournment is insufficient for a recess); The Pocket Veto: Historical
Practice and Judicial Precedent, 6 Op. O.L.C. 134, 149 (1982) (advising
President to avoid making recess appointments ``when the break in
continuity of the Senate is very brief.'') See also Memorandum for
Alberto R. Gonzales, Counsel to the President, from Jack L. Goldsmith
III, Assistant Attorney General, Office of Legal Counsel, Re: Recess
Appointments in the Current Recess of the Senate at 3 (Feb. 20, 2004)
(cited in Lawfulness of Recess Appointments During a Recess of the
Senate Notwithstanding Periodic Pro Forma Sessions at 9 n.13 (Jan. 6,
2012) (noting argument that a minimum of 3 days is necessary in view of
the requirements in Art. I, Sec. 5, cl. 4 that neither house can
adjourn for more than three days without the other's consent))
[hereinafter Opinion of January 6, 2012]. And, of course, the Senate
must actually be in recess.
As the number of recess appointments has grown, so has the Senate's
determination to check the practice. Beginning in 2007, that body has
chosen often to remain ``in session'' on a pro forma basis during
congressional recesses so as to prevent controversial nominees from
being recess appointed. Whether such pro forma sessions are inherently
sufficient to defeat a presidential recess appointment can be honestly
debated. The practical test, as outlined in OLC's 1989 Recess
Appointments opinion, is ``whether the adjournment of the Senate is of
such duration that the Senate could `not receive communications from
the President or participate as a body in making appointments.''' 13
Op. O.L.C. 325.
In justifying President Obama's January 4, 2012, recess
appointments to the CFPB and NLRB, OLC argued that the Senate was not
``available to receive and act on nominations'' during a pro forma
session, and that such sessions could not therefore prevent recess
appointments. Opinion of January 6, 2012, supra, at 1. Unfortunately,
the office gave short shrift to the most fundamental objection to its
conclusions: that it is the Senate, and not the President, which is
constitutionally empowered to determine how it will operate and what
business can or will be transacted during its sessions, however brief.
See U.S. Const. Art. I, Sec. 5, cl. 2 (``Each House may determine the
Rules of its Proceedings.'').\2\
---------------------------------------------------------------------------
\2\ As other commentators have correctly noted, the precedents
cited to the contrary in OLC's Opinion of January 6, 2012, supra, at 1,
involved the question of individual rights and are inapposite. See Todd
Gaziano, ``Whitewash on Illegal Appointments Won't Work'' (Jan. 12,
2012), available at, http://blog.heritage.org/2012/01/12/whitewash-on-
illegal-appointments-wont-work/.
---------------------------------------------------------------------------
And, in fact, at the time the January 4 appointments were made, the
Senate was capable of transacting business in accordance with its own
rules and past practice, including acting on legislation.\3\ There is
no doubt that the Senate's adoption of pro forma sessions as a means of
preventing recess appointments is frustrating to the President, as it
surely was to his predecessor. President Bush, however, accepted the
ultimate authority of the Senate to govern its own proceedings, and did
not purport to exercise his recess appointment power when the Senate
was in pro forma session. President Obama's approach necessarily
arrogates to himself the ultimate authority to determine the adequacy
of the Senate's rules and how nominations are handled. The Constitution
simply does not give the President such power.
---------------------------------------------------------------------------
\3\ As OLC's Opinion of January 6, 2012, itself acknowledges, the
Senate had in fact passed legislation (a politically important payroll
tax cut extension) during a pro forma session. Opinion of January 6,
2012, supra, at 21.
---------------------------------------------------------------------------
3. frustration of legitimate congressional oversight
Earlier this year the Administration's refusal to provide documents
to the House Committee on Oversight and Government Reform led to an
unprecedented contempt citation by the House of Representatives against
Attorney General Eric Holder. The issue involved, of course, was
Committee demands for documents relative to the astonishingly ill-
conceived ``Operation Fast and Furious,'' through which thousands of
firearms were smuggled into Mexico at the behest of U.S. government
agencies and officials as part of an anti-drug cartel initiative. Of
perhaps 140,000 responsive documents, the Justice Department has
produced about 7,600 pages, many with heavy redactions. Last June, the
President asserted Executive Privilege with respect to those materials
directly bearing on the Justice Department's handling of the fallout
from Operation Fast and Furious, which the Committee believes may have
involved deliberate misrepresentations to Congress.
Executive privilege, of course, is not specifically provided for in
the Constitution's text, but since Washington's administration has been
inferred based upon the Executive Branch's status as a separate and co-
equal branch of government and the President's authority to supervise
and direct the Executive Branch. It has been fully recognized by the
courts. See e.g., In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997).
That said, executive privilege is not absolute--as President Nixon
found to his great cost. See United States v. Nixon, 418 U.S. 683
(1974) (need for information for a criminal trial sufficient to
overcome President's assertion of executive privilege with regard to
White House tapes.) In the context of determining how powerful any
particular assertion of privilege may be, the courts have distinguished
between two components of executive privilege. The first and strongest
type of executive privilege, grounded entirely in the Constitution's
separation of powers, is the ``presidential communications privilege.''
This covers communications from and to the President and extends to his
immediate advisors. See e.g., Judicial Watch v. Department of Justice,
365 F.3d 1108, 1114-1116 (D.C. Cir. 2004). A very strong showing of
need, as where documents may be necessary to a criminal trial (not
simply an investigation) as in Nixon, must be made to overcome the
presidential communications privilege. See In re Sealed Case, 121 F.3d
at 744-45.
In this instance, of course, ``the White House has steadfastly
maintained that it has not had any role in advising the Department with
respect to the congressional investigation.'' Letter from the Hon.
Darrell Issa to the President, June 25, 2012, at pp. 1-2, available at,
http://images.politico.com/global/2012/06/issaobamaltr.pdf. As a
result, it would not be appropriate for the Administration to assert
the strictly constitutionally-based presidential communications
privilege.
The second type of executive privilege is the ``deliberative
process privilege.'' This privilege is far broader than the
presidential communications privilege, and generally protects materials
reflecting federal agency deliberative or policymaking processes.
According to the D.C. Circuit, the deliberative process privilege
``originated as a common law privilege,'' and only certain ``aspects of
[that] privilege, for example the protection accorded the mental
processes of agency officials . . . have roots in the constitutional
separation of powers.'' Id. at 737 & n. 4. See also Letter Opinion to
the Counsel to the President, Assertion of Constitutionally Based
Privilege Over Reagan Administration Records, 2004 OLC LEXIS 24, 28 Op.
O.L.C. 1 (Jan. 12, 2004) (referencing ``government-wide deliberative
process component of the President's constitutionally based
privileged.''). It is ``[t]he most frequent form of executive privilege
raised in the judicial arena.'' In re Sealed Case, 121 F.3d at 737.\4\
---------------------------------------------------------------------------
\4\ This is because Congress has itself recognized the
``deliberative process privilege'' in section 5 of the Freedom of
Information Act. See 5 U.S.C. Sec. 552(b)(5).
---------------------------------------------------------------------------
Although reaching a much broader range of materials, the
deliberative process privilege also is far weaker than the presidential
communications privilege. This is because the relevant communications
do not involve the President directly, and often are very far removed
indeed from his own deliberative and decision making processes. The
separation-of-powers concerns are, therefore, far less evident. As a
result, of course, the showing of need necessary to overcome this
species of executive privilege is much less demanding and, as noted by
the United States Court of Appeals for the District of Columbia Circuit
in a leading case, ``the privilege disappears altogether when there is
any reason to believe government misconduct occurred.'' In re Sealed
Case, 121 F.3d at 746.
This, of course, is the case with regard to Operation Fast and
Furious and the Justice Department's initial statements to Congress
about that embarrassing and tragic fiasco. Moreover, when the need for
executive branch secrecy regarding the formulation, execution, and
closure of this program is weighed against Congress' legitimate
oversight needs, the balance to be struck is clearly in Congress'
favor. As a result, the Administration's assertion of the privilege
here cannot be legally justified and again reveals a determination to
ignore or evade the lawful limits on executive authority.
Overall, the Obama Administration has disregarded some of the most
basic constitutional limitations on presidential power, ignoring those
limits in order to achieve its desired policy outcomes, or to avoid
scrutiny of its programs and operations. Whether this grows out of a
determined effort to undercut the role of Congress in our
constitutional system, or from a simple impatience with political
opposition and legal constraints, the result is the same--a direct and
sustained assault on the balance of powers so carefully constructed by
the Constitution's Framers.
Thank you, and I would be pleased to answer the Committee's
questions.
__________
Mr. Smith. Senator Lee, thank you for staying for
questions. I very much appreciate your testimony and let me
direct my first question to you.
What is fundamentally wrong with the President himself
alone deciding when the Senate is out of session?
Senator Lee. First and foremost, the Constitution itself
gives each House of Congress the prerogative of determining its
own schedule, subject to certain general parameters outlined in
the Constitution, and just as importantly giving each body the
power to establish its own rules. And so its own rules often
determine its own schedule and determine when it is and is not
in session.
So when you take that, and you take the fact that the
Constitution requires Senate confirmation of executive branch
nominees and judicial nominees, you can destroy that power or
at least seriously undermine it if you allow the President to
conclude based on his own judgment that the Senate while it
considers itself not to be in recess in fact is in recess
perhaps because the President doesn't think enough is
happening. At that point as soon as the President has that
power the President can in many, many circumstances just
circumvent the confirmation prerogative of the Senate, the
advice and consent function of the Senate. That is dangerous.
Mr. Smith. Thank you, Senator Lee.
Mr. Casey, when the Administration unilaterally decides to
either ignore immigration, welfare or education laws what is
the impact of that on our democracy?
Mr. Casey. Well, Mr. Chairman, I think among all of the
issues we are talking about that one is the most critical
because refusing, failing to carry out the law as Congress has
passed it undercuts Congress' role in our constitutional
system. It seizes for the executive a kind of legislative power
which our framers would have been astonished and appalled to
see any President attempt to exercise.
Mr. Smith. Thank you, Mr. Casey.
And Ms. Windham, what impact does the contraceptives and
abortion inducing drugs mandate that is in the new health care
bill have on religious and Catholic employers?
Ms. Windham. It has a tremendous impact on religious
employers, Catholic employers and employers of other
denominations and faiths as well. If you refuse, if an employer
cannot in good conscience provide these drugs and services they
are facing fines of $1,000 per employee per year and also $100
per employee per day. These can easily run into the hundreds of
thousands and even millions of dollars. So for an organization
like Colorado Christian University, which is an evangelical
university in Colorado, they are looking at $500,000 a year. If
they choose to have policies that follow their faith they are
looking at hundreds of thousands of dollars, a crushing amount,
for simply asking for the right to practice what they preach.
Mr. Smith. Thank you, Ms. Windham.
That concludes my questions, and the gentleman from
Michigan Mr. Conyers is recognized for his questions.
Mr. Conyers. Thank you, Chairman Smith. Let me turn to
Professor Michael Gerhardt and track the last question that was
raised by our distinguished Chairman.
Does the Health and Human Services rule violate the
exercise of free speech when 28 States for years have already
required that contraceptives be covered similar to prescription
drugs? Could you pick up on that discussion between the
previous witness and yourself?
Mr. Gerhardt. Yes, sir. Obviously I don't perceive there to
be a constitutional or legal violation here. But let me if I
might just go back to a focus on process. I don't think on that
issue or any of the other issues we have been talking about the
President of the United States or his Administration are
standing alone. It is not as if they are out there unsupported
and unjustified in taking positions on any of the issues we
just talked about. On the one you have just mentioned there are
other Members of Congress, there are other scholars, others
that view that the Administration, for that matter the State
policies you just pointed out, take a position of neutrality on
the issue of contraceptives as one of the things to provide as
part of medical services. And the Administration's position on
this I think has been evolving, which suggests that in fact
they are trying to reach some sort of accommodation that may or
may not make everybody happy. But that seems to me to be part
of the process. And I think at the same time a lot of what is
going on here is the result of institutions having taken
Federal money, and Federal money comes with conditions
attached, and that is one of the consequences of taking the
money.
Mr. Conyers. Well, you have done what I was going to next
ask, which is to try to review any of the assertions made by
your fellow witnesses that we want to kind of get in the record
and get cleared up. I think that as a constitutional scholar
who has been before the Judiciary Committee not many times but
at least some times that you could be very helpful to all of us
in that regard.
Mr. Gerhardt. Well, thank you. I just might add though that
it is not my point to suggest that I think there is an obvious
single correct answer here. I think this is largely about
whether or not we have confidence in the process, confidence in
whether or not these issues are being approached in good faith
and handled competently and credibly and that there is credible
constitutional support and legal support for the positions of
the Administration. That is my point. My point isn't to suggest
that any of the issues being raised here are being raised
inappropriately or in bad faith, but simply that I think the
Administration's approach does not constitute any abuse of
power.
Mr. Conyers. Now, in your testimony you distinguished
between political choices and constitutional choices. Now, to
your knowledge has anyone determined as a matter of law that
the Obama administration has acted unconstitutionally on any of
the matters that we have discussed today, invoking executive
privilege in Fast and Furious, making recess appointments,
exercising prosecutorial discretion and enforcing immigration
laws?
Mr. Gerhardt. I think the answer is no. And I think this is
a function of what I sometimes describe as the constitution
outside the courts. When you are operating outside the courts,
as what is occurring here, you will get some conflict, you will
get some tension, but at the same time the President at least
for his part and his Administration for its part has put
forward the support for its positions and is trying to in a
sense explain what it has done. Obviously this institution will
push back to some extent. But that is the nature of the
process. But I don't think there is any--to answer your
question succinctly, there is no finding of any legal violation
the President or his Administration has committed. There is
disagreement but disagreement doesn't constitute violation.
Mr. Conyers. Thank you, Professor Gerhardt. Thank you, Mr.
Chairman.
Mr. Smith. Thank you, Mr. Conyers. The gentleman from
California, Mr. Gallegly, is recognized.
Mr. Gallegly. Thank you very much, Mr. Chairman, and thank
you for calling this hearing. While I want to have an
opportunity to have a couple of questions for our witnesses I
would just like to respond to my good friend from Michigan's
opening statement. And he truly is my good friend and has been
a good friend for a long time and will continue to be a good
friend. But I have to respectfully disagree with one of the
statements he had regarding voter ID. With all due respect, I
believe the greatest threat that we have to our democracy or to
any democracy is fraud in the electoral process. And if we
don't have control over the legitimacy of an election, that
compromises the democracy more than anything. And so we may
have a little disagreement on how we get there, but I think at
the end of the day we want the same thing.
Mr. Conyers. Would the gentleman yield for just a moment?
Mr. Gallegly. I will yield.
Mr. Conyers. Thank you very much. I appreciate it. Could
you just document somewhere in the course of our judiciary
hearings all the fraud in the electoral process that you have
ever come across?
Mr. Gallegly. Well, I think common sense will predicate
that if people do not have to show that they have a legal right
to vote, and of course one of the things if we go back
historically on the issue of absentee voting that has changed
dramatically. And we don't have a check and balance. If you go
to K-Mart or any other place and you give them a check for $3
they are going to want to know you are who you say you are. And
so I think that that in and of itself invites significant
debate.
And I would like to have an opportunity now to talk to some
of our witnesses. And Senator Lee, thank you very much for
being here this morning. Senator, despite the fact that
Congress has repeatedly failed to pass the DREAM Act the
President recently unilaterally granted a de facto amnesty to
many illegal immigrants.
How do you see that if any way impacting the ability for
millions and millions of Americans that are out of work finding
a job?
Senator Lee. Obviously any decision that involves either
loosening or tightening our immigration laws might have an
effect, will inevitably have an effect on the job market by
either contracting or expanding the supply of labor. So this is
one of many factors that ought to apply in any public policy
decision made within the Federal Government with regard to
immigration laws, especially with regard to those laws that
govern one's ability to work in this country as an immigrant.
So absolutely it will have an effect. It is difficult to
quantify exactly what that effect might look like, in part
because we don't know exactly how many people this might apply
to. But the point is that these are legitimate policy concerns.
There are legitimate policy arguments to be made on both sides
of the DREAM Act issue. But the Constitution in its opening
line, right after the Preamble in Article I, Section 1 says
that all legislative powers herein granted shall be vested in
the Congress which shall consist of a Senate and a House of
Representatives. Now, the legislative powers encompass the
power to legislate. To legislate is to make rules, rules
carrying the force of generally applicable law. The coercive
force of government will enforce those rules. Here with this
Executive order we have what is in effect a piece of
legislation. It didn't go through Congress. So whether you are
a Republican or a Democrat, whether you are a liberal or a
conservative, whether you are pro-immigration reform or anti-
immigration reform, especially if you are a Member of Congress,
and in any event if you favor the rule of law you should want
that policy decision to be made by Congress.
Mr. Gallegly. Thank you, Senator Lee.
Mr. Casey, do you think that the de facto amnesty in any
way will act as a magnet or send a signal to others that have
not arrived here illegally to come to this country illegally as
though it is a de facto invitation?
Mr. Casey. Sure. Well, I think any time that the executive
publicly makes plain that a particular law or part of a law
will not be enforced it acts as an incentive to others to break
that law since there very possibly or very likely will be no
consequence. So yes, I think so.
Mr. Gallegly. Thank you, Mr. Casey. Maybe Senator Lee might
like to jump in on this one as well. Do you think that, or are
you concerned about future Presidents, Democrat, Republican,
whatever the situation, would use this precedent of granting de
facto amnesty unilaterally to other groups of immigrants and,
if so, give me an example?
Mr. Casey. Well, yes, a precedent--we live by precedent in
our law and once this line is crossed it is very likely that a
future President will cross it again. And you can think of an
entire range of potential areas where there may be good policy
arguments for nonenforcement, be it in the immigration area or
even some of our criminal laws, that will if a future President
decides that it is against his policy preferences to enforce he
will not enforce and cite this example.
Mr. Gallegly. Thank you very much, Mr. Chairman. I see my
time has expired. I would like to make a unanimous consent
request that a recent article in Maryland Politics regarding
Maryland Democrat Quits Congressional Race Amid Voter Fraud
Allegations.
Mr. Smith. Without objection.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Smith. Mr. Nadler is recognized.
Mr. Nadler. Ms. Windham, you said in your testimony
regarding what you regard as the mandate, that is, the
regulations on contraceptives in the Affordable Care Act that
government--that there should never be--force anybody to make a
choice between religious conscience and obeying the law; is
that correct?
Ms. Windham. Yes.
Mr. Nadler. Thank you. Now you seem to advocate for the
right of any employer then, even for example someone who owns a
McDonald's, to object on religious grounds to insurance that
covers contraception, is that correct?
Ms. Windham. What we believe----
Mr. Nadler. Is it correct, yes or no, please, because I
have a lot of questions.
Ms. Windham. We believe that religious conscience should be
respected. So if a religious business owner has----
Mr. Nadler. So the answer is yes, please.
Ms. Windham. When that is protected by our First Amendment
or RFRA, then yes.
Mr. Nadler. So please just answer yes, then. So in other
words, that would apply also to someone who said, my religion
tells me that no one may come into my McDonald's store who is
Black or a woman because that violates my religious freedom,
the government has to right to say no to that, correct yes or
no?
Ms. Windham. I am not aware of any case where RFRA----
Mr. Nadler. That is not the question. Do you believe that
government has the right or not to violate, to tell a person to
violate his religious conscience by serving Black people?
Ms. Windham. I believe that the government has a right as
is said under RFRA and as is said under our First Amendment to
restrict religious conscience only when there is a compelling--
--
Mr. Nadler. Okay, only when there is a compelling State
interest. Now, now the Supreme Court--now Justice Scalia said
that to make an individual's obligation to obey such a law,
that is a law of general applicability such as any of the laws
we were just talking about, including the contraceptive
mandate, to make an individual's obligation to obey such a law
contingent upon the law's coincidence with his religious
beliefs contradicts both constitutional, traditional, and
common sense and would make every individual a law unto
himself.
Now we thought that went a little too far and we enacted,
and I was one of the sponsors of the Religious Freedom
Restoration Act, we said that in order to enforce a law of
general applicability against religious conscience one should
have to show compelling--that there was A, an undue burden
placed--a substantial burden, not undue, a substantial burden
placed on the religious exercise of a freedom and that undue,
that substantial burden was justified by the States showing
that it was necessary to place that substantial burden on the
exercise of religious conscience in order to vindicate a
compelling state interest and that that was the least
restrictive means of doing so, the so called strict scrutiny
test.
With any number of--and yet and you seem to be arguing that
the mandate simply by saying that an institution like a
hospital must purchase insurance that allows people to get
contraception is--do you believe that is a substantial burden
on religious belief?
Ms. Windham. If that is contrary to their sincere religious
beliefs, then yes.
Mr. Nadler. So any law that contradicts sincere religious
belief is a substantial burden.
Ms. Windham. Not any law. It has to be a substantial burden
on their religious exercise, such as when it forces them or
threatens them with a fine to violate their faith. The Supreme
Court said it was a substantial burden when Amish families were
fined $5 because they refused to send their children to public
school.
Mr. Nadler. But the Supreme Court rejected the claim that
an individual's payment of taxes for registration fees, where
that money might be used to fund health care to which the payer
objects on religious grounds, imposes a substantial burden on
religion. They have rejected the claim that registering for the
draft imposes a substantial burden on religion. They have
rejected the claim that paying taxes that go for defense
against someone's religious principles are a substantial
burden. And they have rejected the Amish claim that paying
Social Security taxes is a substantial burden.
Mr. Gerhardt, would you comment on the absolutist claims of
Ms. Windham and the people who say that the contraception
mandate is a violation of religion in light of the Supreme
Court decisions, in light of the Religious Freedom Restoration
Act, and in light of the finding that women's cost for health
care can be in many cases 68 percent higher than men's because
of the necessity to pay for contraception and for other
gynecological problems that men don't have and that this in
fact is an exercise of the State's right to exercise its right
to vindicate a compelling State interest?
Mr. Gerhardt. I can try, but Mr. Chairman, I see my time is
up.
Okay. Well, thank you, Mr. Nadler. Thank you, Mr. Chairman.
I think Ms. Windham makes perfectly reasonable arguments. I
think that one of the things we need to think about is what is
the legal doctrine or legal framework within which all this
takes place. And for example, Mr. Nadler, you had referred to
the Supreme Court's test, for example, in Smith v. Employment
Division which relates to how do we determine the
constitutionality of a generally neutral applicable law. Well,
the answer there is that we use the rational basis test. That
is an opinion by Justice Scalia. We don't use any heightened
scrutiny in a circumstance like that. But I think one reason we
are in this discussion is because we are in a very difficult,
tricky area of constitutional law and it is the intersection
between free exercise and establishment. When you are in that
intersection you are within under the thorniest areas of
constitutional law. And all I can tell you there is what one of
my former law professors said and I will try to say this in the
14 seconds I have left. I was a research assistant to Philip
Kurland, who was a great constitutional law professor, formerly
clerk to Justice Frankfurter, conservative law professor,
University of Chicago for many years. And he said the only way
I can think my way out of this thicket is to expect neutrality
from government. That is to say government takes a neutral
position. If you create an exception in a law that benefits
only religious organizations, then you could attack it for
being an establishment. So either way you are going to face
some dilemma.
Mr. Nadler. So a neutral application of the general law for
contraception coverage would be regarded how by Professor
Kurland?
Mr. Gerhardt. Well, I would think he would think that is
plainly constitutional. When you start creating exceptions in
the law that favor religion then one issue you have got to
confront is whether that confronts----
Mr. Nadler. So this mandate is not an unprecedented attack
on religious liberty?
Mr. Gerhardt. No.
Mr. Smith. The gentleman's time has expired, thank you.
Thank you, Mr. Nadler. The gentleman from North Carolina, Mr.
Coble, is recognized.
Mr. Coble. Thank you, Mr. Chairman. I apologize I have had
a simultaneous hearing in Transportation so I have been back
and forth. Good you to have you all with us, particularly my
fellow Carolinian from Chapel Hill.
Mr. Gerhardt. I am having a little trouble hearing.
Mr. Coble. I just said it is good to have all of you with
us but in particular my fellow Carolinian from Chapel Hill.
Mr. Gerhardt. Thank you, sir. It is great to be from there.
Mr. Coble. It is good to have all of you. Senator Lee, you
have had boots on the ground on the other side of the Hill now
for a good while. Share with us if you have any concerns about
the decisions that the President may have made as Commander in
Chief. I realize that is a general question.
Senator Lee. With regard to the President's Commander in
Chief powers I was personally somewhat concerned when we got
involved in military action in Libya without any prior
consultation of Congress, without a declaration of war, without
an authorization for use of military force.
Now I will be the first to concede that there is some gray
area, there is some uncertain middle ground between where the
President's Commander in Chief powers on the one hand and where
Congress' power to declare war begins.
Congress has sought through the War Powers Resolution to
clarify some of that gray area and to at least establish some
standards. But even within those standards the President in my
opinion did not take adequate care to consult or obtain
permission from Congress before going there. That is the most
glaring example I can think of with regard to his Commander in
Chief powers.
Mr. Coble. I thank you, Senator.
Ms. Windham, much has been said about the mandate. In your
opinion does the mandated health care coverage have a chilling
effect on religious organizations that serve their respective
local communities through various charitable works?
Ms. Windham. Yes, sir, we believe it does have a chilling
affect. What is so troubling about the way this mandate has
been written is that it specifically hits religious
organizations who choose to open their doors and serve anyone
who is in need. And so you are not eligible for the mandate's
very narrow religious exemption if you decide to serve people
who are not of your own faith. I think it is very troubling to
set a precedent that religious organizations forfeit some of
their constitutional rights when they choose to serve their
country and serve the public.
Mr. Coble. I thank you both. Mr. Chairman, I have got to go
back to my other hearing, so I am going to withdraw if I may
and yield back.
Mr. Smith. Thank you, Mr. Coble. Gentleman from Virginia,
Mr. Scott, is recognized.
Mr. Scott. Thank you, Mr. Chairman. I am going to follow up
on that same line of questioning and point out that in the
1960's when we passed Medicare all of the hospitals in the
South were racially segregated as a matter of religious belief
and the segregation was preached from the pulpit. President
Johnson by Executive order mandated the idea that if you
accepted Medicare you could not be--run a segregated facility.
Ms. Windham, in your judgment did President exceed his
presidential authority?
Ms. Windham. I am not familiar with what law was being
discussed there or what was being relied upon. I am not here to
argue and I am not aware of any cases arguing that religious
hospitals can discriminate according to race because of RFRA or
the First Amendment. All we are here to ask for is that our
clients and religious organizations and religious individuals
have the same rights today that they had on July 31st, 2011,
the day before the mandate went into effect. If we were not----
Mr. Scott. Well, did President Johnson's Executive order
prohibiting hospitals that accepted Medicare from running
segregated facilities, racially segregated facilities, did that
violate--did he exceed his powers?
Ms. Windham. Again I am not familiar with what he did there
in the Executive order. Again I am not here to argue with
anyone.
Mr. Scott. Let me ask Mr. Gerhardt a question. Mr.
Gerhardt, Professor, I want to point out to my friend from
North Carolina that you were a Virginian before you were a
North Carolinian.
Mr. Gerhardt. Covered all my bases.
Mr. Scott. Is there a difference in application of rules
between a volunteer free clinic run by a religious organization
and a public hospital that accepts Medicaid, Medicare and is
open to the public in terms of their responsibility to follow
generally applicable law?
Mr. Gerhardt. Well, I think the answer to that would have
to be yes. If you are the latter, then as you just pointed out,
you are subject to all the conditions that would apply to any
other institution or entity that operates in the same field.
Mr. Scott. And if you are a public accommodation, what is
wrong--you kind of alluded to it, what is wrong with an
exception for individual conscience?
Mr. Gerhardt. Well, we obviously try and provide that and
the law tries to provide that in all sorts of ways. But I was
just trying to point out that this is a very tricky area and
one of the difficulties you have got is once you move away from
a generally mutual applicable neutral law and start making
exceptions only, for example, religious organizations then that
raises a possible establishment problem. And so government when
it sets out making regulations has got to sort of maneuver
through that thicket. And I think that that is what the
Administration is plainly trying to do in this area.
Mr. Scott. If people have individual religious problems
with one regulation or another, is that just too bad?
Mr. Gerhardt. Well, it shouldn't just be too bad. Obviously
people have sincere religious beliefs that are being burdened,
that does raise some serious concerns.
Mr. Scott. When I was growing up one religious belief was
that the races should be separated and that was preached every
Sunday from the pulpit. If you have a public accommodation, are
you going to allow any individualized conscience as an
exception?
Mr. Gerhardt. Well, as you know, when you move away from
the pulpit into civil institutions, they are going to be
subject to the law and one of those laws is legal protection
clause or in the case of a Federal----
Mr. Scott. And so the difference--if you are running a
public operation that just happens to have certain religious
beliefs, that is different from running a religious mission, a
volunteer free clinic as opposed to a public hospital, is that
right?
Mr. Gerhardt. I would say that is correct, yes.
Mr. Scott. Can you talk a bit about what the precedence is
on recess appointments and when it is a recess and when it
isn't?
Mr. Gerhardt. Well, one of issues that arises in that area
as Senator Lee was alluding to was the question of when the
recess occurs. And one of the disagreements we have here is how
do we go about determining that. I think the complication for
the President of the United States in this instance was that
the pro forma sessions in the Senate were something he thought
were designed to obstruct his recess appointing power, and then
the question becomes how is he able to defend his prerogative.
And I think that is precisely what he was trying to do. The pro
forma session exists for a number of reasons, one of which I
think frankly is to impede that presidential authority. And I
think the President has got the ability and authority to in a
sense push back, to say you can't make a unilateral decision
about when there is a recess, when I think in fact it is being
done solely for the purpose of frustrating one of my powers.
Mr. Scott. And who decides ultimately?
Mr. Gerhardt. I am sorry?
Mr. Scott. Who ultimately decides that question?
Mr. Gerhardt. Well, it depends on how it plays out. I know
it may be pending in the courts, the courts may or may not want
to get to the merits of the issue. If the courts don't get to
the merits of the issue, then it gets played out between this
institution and the President. And that is how a lot of
suppression of powers issues get played out, they get played
out over time and how these institutions work together and
reach some accommodation.
Mr. Smith. Thank you, Mr. Scott. The gentleman from Ohio,
Mr. Chabot, is recognized.
Mr. Chabot. Thank you. Before I get into my questions,
Senator, did you have a comment that you wanted to follow up on
there?
Senator Lee. Thank you very much, Congressman, I appreciate
that. I wanted to respond very briefly a couple of these
religious liberty points just to make sure there is no
ambiguity. Making sure there is a religious exemption here
would not in my opinion cause either of the two problems that
have been suggested. Number one, it would not lead to a risk of
racial discrimination on the basis of a purported religious
belief. There is precedent from the Supreme Court in the 1983
decision of Bob Jones University v. United States in which the
Supreme Court of the United States upheld Federal tax law
revoking the tax exempt status of Bob Jones University which
claimed the right to discriminate in its admission decisions on
the basis of race. Predicating that practice on religious
belief, that was soundly and roundly rejected by the Supreme
Court in an 8 to 1 decision in 1983. This is in fact a
compelling State interest that the Federal Government has and
it does thwart any kind of religious belief there with regard
to or desire to racially discrimination.
Secondly, I want to respond to any suggestion that may have
been made that granting a religious exemption to the
abortifacient and contraceptive mandate would somehow amount to
a violation of the establishment clause of the First Amendment.
This kind of assertion was soundly and roundly rejected by the
Supreme Court of the United States in the 1987 decision of
Corporation of the Presiding Bishop v. Amos. Congress is free,
the Federal Government is free to grant religious exceptions
and doing so does not amount to an establishment clause
violation.
Thank you.
Mr. Chabot. Thank you very much, Senator.
Mr. Casey, I wanted to direct my first question to you. You
had talked during your testimony about the Obama administration
breaking with traditional separation of powers originally
adopted by the framers in the Constitution. And I would like to
focus on one of the particular abuses of power that I see.
In early July the Obama administration unilaterally
announced that it would disregard current law and allow states
to apply for waivers of the work requirements that have been
critical to the success of welfare reform. We passed welfare
reform back in 1996, and it was TANF of course. I was here, I
had been just elected in 1994 and I had some experience at the
local level with the need to reform welfare. I was on city
council in Cincinnati and I was the county commissioner, and we
had lots of folks that were growing up in homes where they had
never seen an adult in the home go to work. What was supposed
to be temporary help for the truly needy had far too often
become a permanent way of life. And we came together with
mostly Republicans but had quite a few Democrats support it,
and President Clinton vetoed it twice but finally signed it the
third time. I want to be very clear about this, there was no
question about the waiver requirement. We wanted to make sure
that people actually had to work. There are all kinds of--
people had unfortunately gamed things like this in the past
where you had people go from training program to training
program, never actually go to work and that was a lot of the
battle that went on. So we made it very clear that was very
important and now the Administration has claimed authority
basically to change those welfare-work provisions. And it
really does in my opinion circumvent Congress' power and step
all over separation of powers.
And last week even the GAO, the Government Accountability
Office, agreed that the Administration exceeded its authority
in granting the waivers. In a letter to Members of Congress
GAO's General Counsel, Lynn H. Gibson observed that the waiver
policy was beyond the discretion granted to the executive
branch by the Constitution.
So what threats are there when a President does clearly
circumvent the separation of powers here and trample upon
really what is very clearly the law. Could you comment on that?
Mr. Casey. Sure. I would say obviously the President has no
inherent power to waive the requirement of any law. You have to
look at each statute to see if Congress has included a waiver
provision. In many statutes it does. And in particular with
complicated statutes like the welfare reform statute. You also
need to look to see whether the waivers Congress may have
included, and there are some, apply to the provisions that the
President wants to waive. As I understand it here they do not.
As a result you get a similar effective suspension of the
application of the law by the executive without congressional
permission, involvement.
Mr. Chabot. Thank you very much.
Mr. Smith. Thank you, Mr. Chabot. The gentleman from North
Carolina, Mr. Watt, is recognized.
Mr. Watt. Thank you, Mr. Chairman. Let me apologize to
Senator Lee and Ms. Windham I was in a markup in another
Committee and missed your testimony. Mr. Gerhardt, welcome Mr.
Casey, welcome, whether you are from Virginia or North
Carolina. I like both of those States and I especially like
folks from the University of North Carolina Law School, so I
appreciate your being here.
It seems to me that while this is an important hearing,
academic hearing, which deserves some review there is precedent
for virtually everything all over the board here I think
about--so if there has been an abuse of power it seems to me
that it has been a bipartisan abuse of power by Presidents
throughout the history of the country. I mean if this President
has abused it then other Presidents have abused it in a number
of respects. I think of signing statements that all Presidents
have signed saying they are going to apply a particular law
that we passed one way or another. That seems to me even when
the signing statements are clearly in conflict with the
legislative intent, the plain language of the statute that we
pass. I think of recess appointments that both Presidents,
Republican and Democratic Presidents, have engaged in over
time.
I think of war powers that several of you have mentioned.
There has always been a difference of opinion about who--what
authority the Commander in Chief has versus the seemingly clear
language that the President should not declare war without the
approval of Congress. So whatever is going on seems to me to be
fairly standard stuff, whether we agree or disagree.
I kind of like Professor Gerhardt's analysis. There is a
lot of things that happen both by Republican Presidents since I
have been here and Democratic Presidents since I have been here
that I didn't necessarily agree with. I am not sure that I
thought they were an abuse of power, I just happened to
disagree with them. And I think it is incumbent on all of to us
try to apply the same standards to a Republican President or a
Democratic President.
I leaned over to my good friend Bobby Scott from Virginia,
there must be something in the water in North Carolina and
Virginia when Professor Gerhardt said something about applying
the same standard to Republicans and Democrats. And I remember
sitting here during the impeachment hearings in this Committee
and Bobby Scott and I in the midst of all of what was going on
discussing with each other whether we would apply the exact
same standards, constitutional standards in an impeachment to a
Republican President as we were applying in the Clinton
administration, to the Clinton impeachment. We had that
discussion and either rightly or wrongly felt that we were
applying the same principles without a partisan bent on it. So
I think that is a wonderful standard that Professor Gerhardt
has outlined for us and I am troubled more by people applying
one standard to this President and a different standard when a
Republican President is in power. At least apply the same
standard if we are going to do this. So if nothing else comes
from this hearing, Mr. Chairman, I hope that we will maybe kick
out the stool under this hearing that is labeled partisanship
and at least all try to apply the same standard whether we are
talking about abuse of power by a Democratic President or abuse
of power by a Republican President because from my view all of
them have been either on the edge or over the edge so--
depending on how you look at it.
So with that I don't have any questions. I think the panel
has been--I am glad you at least put one witness on that is
from North Carolina and from Virginia that makes it sound at
least balanced in the approach. I yield back.
Mr. Smith. Thank you, Mr. Watt. The gentleman from Iowa,
Mr. King, is recognized.
Mr. King. Thank you, Mr. Chairman. And I thank the
witnesses for your testimony here this morning. I picked up
some of it and like others I have been a little bit busy with
some other duties too. But I am looking at this list of
subjects that I think are encompassed by this hearing and I
just go down through some of them, the contraceptive,
sterilization, abortifacient manufacture policy by the
President of United States, the DREAM Act light so to speak,
the amnesty piece which manufactures immigration law out of
thin air, the No Child Left Behind component, the welfare to
work being struck, and its title languages could be written
that prohibits any kind of an executive interference within
requirement to welfare to work on TANF, that blown out of the
water by their President of the United States. The recess
appointments which are certainly the subject of this discussion
as well.
I go down through some others that the courts have looked
at some I might not necessarily agree with their opinion but
the effort on the part of the President to implement cap-and-
trade by EPA rules is another one. I am looking at this
Congress and thinking this, and I pose my first question to
Senator Lee because your written testimony alludes to it to
some degree. And that is this, in the understanding of the
framers that set up the three separate branches of government
and that balance of powers it is my belief that they believed
that each branch of government would jealously protect the
power and authority granted to it within the Constitution and
that that natural tension in that struggle to maintain the
power and authority that is constitutional there would be a
protection from the overreach on the part of any branch of
government, and they saw the judicial branch as the weakest of
the three, and they saw the LEGISLATIVE BRANCH as being able to
control the executive. And I would ask Senator Lee if you agree
with that? And what are the remedies that might fit within the
vision of the framers?
Senator Lee. Thank you, Congressman King. This question
actually relates closely to what Congressman Watt said quite
well a few moments ago. These things are not new--Executive
powers are not new, they are as old as the republic itself. And
they are in fact much older than that and that is why we have
the Constitution doing what it did. So I think the solution
lies in acknowledging that this tendency exists. It exists
for----
Mr. Smith. Let me see if we can get the acoustics working.
Senator Lee. Is that better? Okay, so, these----
Mr. King. It is my microphone here. I will move down one.
Senator Lee. These things happen not because we have had
bad men as Presidents. We haven't, we have had good men, that
includes our current President. These things happen because
Presidents are human beings, humans are themselves, self
interested and they are also fallible. Those two things when
coupled with power lead to abuses of power. And again I don't
mean the word abuse of power to refer to anything criminal
necessarily, it can lead to that, but it doesn't necessarily
involve that. It just means excesses of power based on what is
granted in the Constitution.
So with regard to the question dealing with how we deal
with it, we deal with it in precisely the manner described by
the Constitution. We exercise our own power because we are also
human and we are also self interested. And when we see someone
stepping over what we perceive to be our boundary line,
stepping onto our property so to speak, we hold hearings,
perhaps we pass legislation but there are other remedies at our
disposal. But most importantly, we cannot ignore abuses of
power because if we ignore them then they become part of the
established practice and tradition within the constitutional
system and that is dangerous.
Mr. King. I would add, Senator, down the line of the list,
one is the advice and consent of the Senate that you reference,
that is a leverage point. But if the President can declare the
Senate not to be in session when they are in session, then he
is essentially mooted the effort of the Senate all together.
We have the ability, especially in the House, to withhold
funding for implement or enforce the overreach of the executive
branch of government, but if the President ignores that and
does say intradepartmental transfers, if the President does
interdepartmental transfers, what is our remedy? I think the
remedy we get to is the subject matter that Mr. Watt brought up
if you follow this down to its logical extension. I would add
also that in my view the public has to be behind this. However
you shake this thing down, whichever branch of government it is
it is going to come through and prevail it will be because the
public stands behind them, but I am looking at this memorandum
that is issued by the President June 15th of this year and it
is the one that establishes, I will call it, executive amnesty.
It is pretty interesting when you read through this he declares
prosecutorial discretion. And he has seven references to
prosecutorial discretion in this little memo that is two and a
half pages long and he has 22 references to individuals,
dealing with individuals. That in truth it creates four classes
of people and it manufactures new immigration law work permit
out of thin air that they just began releasing yesterday. And I
want to quickly ask Mr. Casey what is our remedy in this case
in particular?
Mr. Casey. Well--Mr. Chairman, may I?
Mr. Smith. Please respond.
Mr. Casey. You raise a very good question. In taking up
something Professor Gerhardt mentioned, one of the real
problems is that these, many of these issues are of the type
that don't get to court either because of standing issues or
because the courts choose to exercise political question
doctrines. And that especially with the immigration memo you
are referring to is going to be a real problem, it is going to
be very difficult to get that issue before the courts. As a
result it is going to be between Congress and the President,
and frankly Congress needs to pursue this, needs to assert its
legitimate authority and prerogatives because, of all the
things I think we have discussed, the suspension of the laws is
the most dangerous. It reduces this body to a debating society.
Mr. King. Thank you and thank you, Mr. Chairman. I yield
back.
Mr. Smith. Thank you, Mr. King. The gentlewoman from Texas,
Ms. Jackson Lee, is recognized.
Ms. Jackson Lee. Mr. Chairman, thank you very much. I could
not start this hearing without expressing my public expression
of sympathy for the loss of Ambassador Stevens and three other
Americans in Libya. All of us offer to their families our
extreme and deepest sympathy and concern for Americans who
serve us both in the military and as civilians overseas.
I do want to say that I think that every President that
comes to office and takes the oath of office comes with the
respect of the Constitution and the belief in the values of
this Nation and the respect for the three branches of
government. I just can't imagine no matter what party
affiliation they have. So I would like to operate from that
perspective and just quickly make some comments and pose some
questions.
First of all, I do want to say in general that I don't
think there is a Member here that is not a believer in the
freedom of religion. It is exhibited in the Judiciary Committee
over and over again in trying to separate church and state and
to recognize the sanctity of that special right that religion
has.
With respect to contraceptives, it is important to note
that your organization, the Becket organization, had a lot of
opportunity post-August 2011 to comment on what was an
administrative action by Health and Human Services. And the
good news was a final rule came out on February 15, 2012 that
separated out religious employer, synagogues, mosques, Catholic
churches, and Protestant churches and others and indicated that
they would look to a safe harbor for additional employers,
nonprofits, Catholic Charities and other. I happen to represent
Catholic Charities in my Congressional district and welcome
that. I understand now that they are taking additional comment
which the Becket organization will have the ability to comment
on and they started that on March 21, 2012. I say that to say
that that had nothing to do with the presidential power. I do
know as I recall in the news that the President was concerned
and wanted to make sure that the Affordable Care Act recognized
religious freedom and that HHS administratively handled that,
and so I wanted to put that on the record as I proceed.
Senator Lee--Senator Casey--Senator Lee, that is what it
looks like it is. Is it correct here? Yes. Let me proceed. It
seems that I recollect meeting or hearing your Governor speak--
I am not sure if this Governor is still in office who spoke
about a very reasoned immigration policy in the State of Utah
dealing with individuals who needed access to legalization. But
what I want to pose a question to you very quickly is that you
in your testimony recognize that prosecutorial discretion is
well established and extends to the establishment of
enforcement priority, but you argue that the Secretary of
Homeland Security exceeded that authority and you use her memo
indicating that she said that immigration laws are not designed
to be blindly enforced without consideration given to
individual circumstance of each case. You did not read further
into her memo where she specifically said the requests for
release pursuant to this memorandum are to be decided on the
case-by-case basis. And of course this has to do with
persecutory discretion with respect to individuals who came to
the United States as children. How do you equate that to
presidential abuse of power?
Senator Lee. I don't think that what you are quoting from
was from my testimony. But more broadly, let me just say what
we are talking about here with regard to the immigration issue
is that when the executive branch adopts a policy that will be
reflected in the implementation of Federal law and that
policy----
Ms. Jackson Lee. Let me correct it, that was Lee Casey's
comments but you can go ahead and answer, go ahead.
Senator Lee. But when the executive branch contravenes,
contradicts that policy as established in Federal statute, that
we have the wrong body in effect legislating, the executive
branch rather than the legislative branch.
Ms. Jackson Lee. Well, you know that this was a decision
made under the authority of Homeland Security and prosecutorial
authority which has nothing to do with the presidential
authority per se. It is part of the Administration.
Senator Lee. I understand that and I understand that
prosecutorial discretion is real. As a former prosecutor myself
I am very familiar with that. Prosecutorial discretion refers
to the fact that the resources of the government are
necessarily limited, in terms of human resources to implement
and to enforce the law. And so case by case judgment calls have
to be made regarding where to deploy your prosecutorial
resources. You have----
Ms. Jackson Lee. But that does not, if I might because I
need a question to Professor Gerhardt, that does not impact on
a presidential decision if it is an administrative decision or
prosecutorial decision made by a department that has nothing to
do--it doesn't link itself to a constitutional question of
presidential abuse.
May I just ask Professor Gerhardt a question?
Mr. Smith. The gentlewoman's time has expired. The
gentlewoman is yielded an additional minute.
Ms. Jackson Lee. I thank the distinguished gentleman and I
think the Senator. Let me just proceed to the professor and
thank you so very much. As I note there is constitutional
permission on recess appointment that is well stated filling
the vacancies and I think the premises for the government's
continuity to give the President that opportunity in order for
there to be--the work of the government to continue. We note
for the record that President Clinton had 139, President Bush
171 and this President at the end of his term 32. What is the
premise of argument that that is an abuse of discretion? It is
allowed during a framework of when the Senate is in session.
And I know there was some discussion as to pro forma and
whether they had stepped out of pro forma. What argument could
they make legitimately?
And Mr. Chairman, when the professor concludes I have a
memo that I would like to submit into the record, but yes,
professor, and thank you for the time.
Mr. Gerhardt. Well, I think as stated here, and I am sure I
can be corrected as necessary, but as stated here I think the
argument is that the Senate and for that matter Congress but in
particular the Senate was not in recess at the time the
President made these appointments. It was in the midst of a pro
forma session and that is not the same thing as a recess and to
amplify that argument, it would also suggest that the House has
the authority to adjourn, it didn't undertake that authority
here and therefore the President acted at a time that was
illegitimate. That is the construction of some Members of
Congress, a perfectly reasonable construction. The President I
don't think feels that he is bound by it. Oftentimes Presidents
will not feel bound by constitutional judgments made by other
authorities with which they disagree. You can find the history
of constitutional law replete with that. In this case I think
the President felt among other things pro forma sessions were
undertaken for the primary purpose of frustrating and impeding
its recess authority. At the same time he felt supported by the
Senate Judiciary Committee's construction of what recesses are.
They said that if there is a break in which they are unable to
act on an appointment or nomination, that is a recess. He
agreed with that. The OLC memorandum agreed with that. So he
got support for this position and didn't use it widely. He used
it with regard to these specific vacancies and thus I think
takes a very credible position.
Mr. Smith. Thank you.
Ms. Jackson Lee. Mr. Chairman, I submit this into the
record, please.
Mr. Smith. Without objection.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Smith. Mr. Goodlatte is recognized.
Mr. Goodlatte. Thank you, Mr. Chairman, and thank you for
holding this hearing. The Constitution is a sacred contract
between the Federal Government and the people in which the
American people chose to bind themselves to a set of rules in
order to protect their God given freedom from abusive leaders
and governments. When politicians are allowed to confuse and
blur the very clear limits that the U.S. Constitution places on
presidential authority, our liberties are threatened.
Today we are looking at how President Obama has abused and
inappropriately expanded the finite authority the Constitution
grants him and how that affects Americans' liberties. So let me
direct this question to Senator Lee and thank him for
participating today.
From the recent amnesty for hundreds of thousands of
illegal aliens to Executive orders that create new laws,
President Obama has repeatedly exceeded his constitutional
executive authority, ignored the legislative branch and
positioned himself as both lawmaker and enforcer. I believe our
framers would have seen this as a very dangerous development
and a violation of the separation of powers they enshrined in
the Constitution. Do you agree and why is this type of
consolidated power so dangerous to our system of government?
Senator Lee. Thank you, Congressman Goodlatte. It is a
pleasure to answer that question because it strikes to the
heart of why we have a Constitution. Political philosophers for
centuries have believed that centralization of power brings
about an unacceptable risk of tyranny. And so it has long been
understood that there are three basic types of government
power, Executive power, legislative power and judicial power.
Our Founding Fathers sought to separate those so that no one
person or no one group of persons could aggregate unto himself
or herself all such power, thus becoming a tyrant at least not
too easily, at least not without regular routine input from the
people.
One reason why the aggregation of Executive power can be so
dangerous is because you have all the power of the executive
branch of the Federal Government essentially more or less
consolidated into one human being. And that really can create a
high risk, and that is why we have a lot of checks and balances
on presidential power. That is why, for example, we have a
requirement that the President's appointees be confirmed by the
Senate. That is why the President has the power to sign and
veto legislation, but Congress has the power to override that
veto and so on and so forth.
So this is about human nature and what power does to human
nature. It is not about any President being a bad person.
Mr. Goodlatte. Thank you.
Let me direct this question to Ms. Windham. Americans'
religious freedoms come from God as protected by our
Constitution, not from President Obama. However, President
Obama's actions are muting these God given rights.
Ms. Windham, when President Obama signed his mandate that
requires businesses to cover--against their religious beliefs--
sterilization, abortion inducing drugs, and other birth control
measures, it was a direct blow to religious freedom. However,
do you also believe that if this mandate is allowed to stand it
will have more subtle but long lasting influence over
Americans' expectations of what their religious freedoms are?
Isn't there a danger that this action could gradually lead to a
new norm where citizens have a smaller view of their religious
freedoms and begin to believe that these rights come from
government?
Ms. Windham. Certainly it does. As I said earlier, I am
very disturbed that the Administration thinks that when an
institution steps out and starts to serve the public and opens
its arms to other, as many religions teach, that somehow they
are forfeiting their constitutional rights. And so it is a very
disturbing trend that people might believe when you start to
serve the public and you start to do good in your country you
are then giving up some of your constitutional rights and your
freedoms.
Mr. Goodlatte. Thank you. Professor Gerhardt, a former
University of Chicago constitutional law lecturer by the name
of Barack Obama was quoted as saying, ``With respect to the
core of executive privilege, the Supreme Court has not resolved
this question, and reasonable people have debated it. My view
is that executive privilege generally depends upon the
involvement of the President and the White House.''
According to this interpretation, there must be a direct
link to the President or his senior advisors in order for a
claim of executive privilege to be appropriate; is that
correct?
Mr. Gerhardt. Well, that is one construction, sir. As
Senator Lee alluded to earlier, I think one of the issues here
is whether or not executive privilege applies to what is called
deliberative process, and that is claiming what the President
is arguing and the Attorney General is arguing here.
Mr. Goodlatte. If this interpretation that he states in his
statement and my interpretation of what you say is one
interpretation; if that interpretation is accepted, does the
claim of executive privilege with respect to the documents
being sought in the Fast and Furious investigation seem to
implicate top White House officials?
Mr. Gerhardt. I have no idea, no knowledge of any of the
underlying facts of what went on within the Justice Department
in response to hearings and other requests. So I don't know any
of the facts there. I don't know that we could draw that
inference.
Mr. Goodlatte. But if he is held to his own standard that
he set forth as a University of Chicago law lecturer, wouldn't
one be able to draw that conclusion, that if now the protection
of executive privilege is being exercised it would implicate
the involvement of the President and the White House, wouldn't
it, in order to exercise executive privilege? If it is only in
the Justice Department, it would not be exercised both under
the standard that President Obama articulated as a
constitutional law professor, and if it doesn't then it would
seem to indicate the President and the White House----
Mr. Gerhardt. I can't answer that because it depends on
facts and supposition about facts that I can't make.
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Smith. Thank you, Mr. Goodlatte. Gentlewoman from
California, Ms. Waters, is recognized.
Ms. Waters. Thank you very much, Mr. Chairman. I would like
to direct my question and discussion to Professor Gerhardt.
Relative to recess appointments, recess appointments have been
utilized by numerous Presidents. Today the Obama Administration
has signed 28 recess commissions comparable to George W. Bush
171, Bill Clinton 139, George H.W. Bush 73 and Ronald Reagan's
240 where the recess appointment clause authorized the
President to act. I am wondering if the criticism that I am is
hearing is appropriate. I am intrigued by the description of
pro forma session as opposed to recess. And I want to know
where in law or our Constitution is this distinction made?
Mr. Gerhardt. Well, it is a very good question. I think
that the dispute between the President and some Members of
Congress is not just about how we determine recess. I think it
is also a dispute about methodology. One way we could construe
the Constitution is sort of a formalistic way, that is to say
recess has got to serve strict definition and that only the
House or the Senate may determine whether or not there is a
recess.
An alternative method, which I think is the one the
President adopted, is what we will call functionalism, where he
looks at the practicalities involved. And so I think the answer
to your question is I think he is taking a practical functional
approach in saying this pro forma session has a function of
being like a recess.
Ms. Waters. However, this hearing is about abuse of power.
It is not about functionality as such, it is not about nuancing
and some loose interpretation of law or Constitution. This is
about basically an accusation that the President has abused his
power as it relates to recess appointments. And I think you are
correct and I am correct that nowhere in law or Constitution
can you point to what the President has done as having violated
the law or disregarded or violated the Constitution. So I think
we should get that out of the way and I think you have done
that and I think you have done a good job of explaining that,
that it is about kind of determining how he operates rather
than being able to absolutely point to some abuse of power.
Now I have a second part to the question that has to do
with once we make law, it has gone through the entire process,
signed by the President of the United States, such as Dodd-
Frank, with the Consumer Financial Protection Bureau. In this
case the Consumer Financial Protection Bureau, charged with the
authority to regulate consumer financial products and services
and enforce consumer protection laws.
The reason I point to this is because serving on the
Financial Services Committee what we discovered and I think
what the entire country discovered was our regulatory agencies
had not done a very good job for the consumers. They were
charged with the responsibility of making sure that safety and
soundness and all of that in our financial institutions as well
as protection of the consumers and they had just kind of
forgotten about the consumers and what they do. And so this
bureau emerges as very important and significant and what the
Congress of the United States, what the Members said was, we
want to create something that will give real consumer
protection and we have discovered that they have not been taken
care of. And so it was important to many of us who work on
Financial Services and who served on the conference committee
working out all of the terrific complications of Dodd-Frank
that we get this bureau up and going and give the consumers and
the citizens some confidence in our legislative ability to
address their problems and concerns.
Do you not believe in the way that the President did this
recess appointment that he was looking out for, not only the
consumers but the work of this Congress in saying we want this
done and getting it done, is that not appropriate?
Mr. Gerhardt. Well, I would say it is appropriate. When I
testified on this matter in the House Oversight Committee that
is one of the grounds that I mentioned. I also supported the
President's actions here. There is a law that has been created,
put into effect, as you just mentioned, a whole legal regime in
fact, and an office that been created by Congress. And both
that legal regime and that office in a sense remained inactive.
And he is trying to put those things into effect through the
use of the power he has been given explicitly under the
Constitution to make recess appointments.
Mr. Smith. Thank you, Ms. Waters. The gentleman from
Pennsylvania, Mr. Marino, is recognized.
Mr. Marino. Thank you, Mr. Chairman. Let me apologize for
not being here to hear opening statements. As an officer of the
court I had to give my CLE courses in for Pennsylvania, so I am
sure you understand that. I will be one of the first
individuals to stand up and say, particularly as an officer of
the court but also as a freshman Congressman, that whatever our
standard is pursuant to law we need to apply it consistently,
it doesn't matter who is in the White House, it doesn't matter
who is in Congress or what segment of government we are talking
about. So I don't think anyone has at least on this Committee
and throughout Congress, I don't think anyone says we should be
applying different standards. It just doesn't make any sense.
Senator Lee, thank you so much because you zeroed in on an
issue concerning the First Amendment to the Constitution, the
establishment clause and religion. So you answered my question
long before I had an opportunity to ask it, but you did a very,
very concise job on those cases and I am familiar with one of
those cases as well.
But I want to get to an issue that I would like each of you
to answer briefly. I have a limited amount of time. Professor
Gerhardt, you made an interesting statement that we should have
confidence in the process and the process in and of itself. So
just for example purposes I would like to zero in on an issue--
nothing pursuant to the facts of Fast and Furious but the fact
that the Attorney General raising through the President the
executive privilege not to turn over documents or to testify
pursuant to those documents. And I know that some of your
statements are going to be well, we handled it through the
courts or we handled it through the electoral or legislative
branch but it doesn't seem to be effective. So number one, are
we in a little bit of quandary here? Who does the Attorney
General work for? The people of the United States or
specifically is he or she general counsel for the President?
And when we get into a situation whereby executive privilege is
exercised where it has been on numerous occasions on both sides
of the aisle at the White House and there is a refusal to turn
over documents and the Justice Department is responsible then
when one is held in contempt for taking that investigation and
pursuing it, refuses to do that. What is the answer to this
dilemma?
It just doesn't seem to be working when we say through the
legislative process or through the legal process. Because, as
you clearly expounded on, the courts, before we even get to it,
we are talking about 2 years later. So I would like to hear
your insights, as brief as you possibly can make it, concerning
what is the remedy for this, if there is one, and what dilemmas
would be raised by it. So, Professor, please.
Mr. Gerhardt. I will be as brief as possible. It is
actually a terrific question.
And my brief answer is that it takes us into the realm of--
well, first of all, the Attorney General, of course, is the
head of the Justice Department, the executive department, and
therefore works in the executive department. He serves at the
pleasure of the President. But, of course, he is also appointed
by--with the confirmation of the Senate, and he is subject to
the laws, and he is held accountable to those laws. And he has
duties, as every Attorney General I think recognizes, not just
to his department but to the Constitution and, ultimately, as
you say, to the people of the United States.
Secondly, in terms of how to deal with the enforcement of a
contempt citation, that is a very difficult question. And I
can't give you a--I won't give you an exhaustive answer, but
one of the avenues that is left to Congress is whether or not
to sue the Attorney General, and I know that is one that is
being considered.
Other than that, you have obviously tried to sort of look
through the U.S. Attorney as well as go to the Department of
Justice. But I think what you may be left with at the end of
the day is what has happened a lot in American history. These
things don't get resolved in the courts, and they don't get
resolved in any short period of time, but in a longer view
there is a settled understanding and accommodation.
Mr. Marino. Mr. Casey, please.
Mr. Casey. I actually agree with much of that. The thing,
obviously, as practicing lawyers, you always have to explain to
your client you can sue, but it is going to be 2 years or 3
years or 4 years before this gets resolved.
Mr. Marino. You are disappointing me so far. I wanted the
answer that, okay, we will change this tomorrow.
Ms. Windham.
Ms. Windham. I don't know that I can really speak to that
issue or have expertise on that issue.
I just do want to emphasize that when the Administration--
--
Mr. Smith. Ms. Windham, could you pull the mike a little
bit closer?
Ms. Windham. Yes, sir.
I don't really have any expertise on that particular issue,
but I----
Mr. Marino. I saw your background. You are very qualified.
Ms. Windham. Well, thank you.
I just want to emphasize that when the Administration
starts to overstep its bounds and uses administrative agencies
in a way that restricts on fundamental First Amendment freedoms
you are seeing a serious problem and you are seeing a serious
overreach of Executive power.
Mr. Marino. And Senator.
Senator Lee. I agree with what Professor Gerhardt said on
this. His assessment of who the client is was absolutely
accurate.
This is one of the reasons why we place enormous trust in
our chief executive and one of the reasons why it is important
when the political branches--when the other political branch of
government sees an abuse of Executive power that the two bodies
that comprise Congress air and discuss the overreach. Because
if it is not discussed there is a good chance nothing will ever
be done about it. Because by the time the courts have a chance
to address it, it might be too late.
Mr. Marino. Thank you, lady and gentlemen. And I yield
back.
Mr. Smith. Thank you, Mr. Marino.
The gentleman from Georgia, Mr. Johnson, is recognized.
Mr. Johnson. Thank you, Mr. Chairman.
I believe that the title of this hearing, ``The Obama
Administration's Abuse of Power,'' is indeed indicative of the
politicization of this hearing. It is overly political. It is
happening during an election time, less than 60 days before the
next election. And I think of what the Founders, the Framers of
the Constitution, I think of what they might be thinking as
they look down on this spectacle to see Republicans reducing
the Constitution to a mere political tool to be used against a
sitting President.
And, quite frankly, Senator Lee, I am really wondering
whether or not your appearance here today in this setting is
actually an unprecedented act by a sitting United States
congressman. I have never heard that this would happen, that a
United States Senator--and I grant you, you are duly elected by
the citizens of the State of Utah. You were sworn in January 3,
2011, so you are new here. But I think that we owe our
Founders, our Framers the dignity in the office, the offices
that we hold, to act in accordance with their lofty aspirations
for this country and for its government.
And so I am concerned about just the precedent of your
appearance here today on an obviously political mission
coordinated to besmirch this President. When in fact we had
other situations where Democrats have been in control, the Bush
administration fires eight attorneys general in what is known
as the Saint--not Saint Valentine's Day massacre, it was the
Pearl Harbor Day massacre back in December of 2006, firing U.S.
attorneys en masse because they did not heed the desire of the
White House to initiate what they considered to be unfounded
prosecutions against Democrats. And we held numerous--we held a
series of hearings on that, but never did we frame the
discussion in terms of a hearing on the President's abuse of
power.
This appears to be an attempt to talk to the extremist Tea
Party Republican element of the electorate. It seems that this
is an attempt to agitate them and to fire them up, to
exaggerate and make them think that the President has embarked
upon an unprecedented abusive Presidential power. And I believe
that that is reckless, and I don't think that the Framers of
our Constitution would be looking very favorably upon this.
Now, Senator, you mentioned that the greatest abuse of
executive authority by this President that you have seen thus
far is the President's actions as commander in chief in the
Libyan incident or the Libyan conflict that we as a Nation
supported; and you indicated there was some gray area between
the President's authority as commander in chief, which is not
enumerated in terms of the specific powers thereunder, and the
legislature's authority to declare war.
We have only declared war five times in the United States--
in the history of the United States, but we have had numerous
conflicts. Are you here to say that the President was abusive
of his authority in the Libyan conflict? You are. You said
that. I have to take issue with that. I take issue with that.
And I know I have said a lot, but I sure would love to hear----
Mr. Smith. Senator Lee, please feel free to respond. But
before you do let me point out that your appearance here is not
unprecedented. There have been many instances where sitting
senators have testified before the House Judiciary Committee.
But please respond.
Mr. Johnson. Now, if the gentleman will yield, I am not
certain that during an election year, less than 60 days before
the election in a hyper-partisan atmosphere, I am not sure
that, insofar as such an exaggerated type of hearing as we are
having today with the incendiary allegations being made, that a
Senator has ever sat before the House and testified in
accordance with the spirit of the hearing.
Mr. Smith. I think one of the great benefits of today's
hearing is that it has not been hyper partisan. I think there
has been a good discussion of the issues that have been
factual, nonemotional, and I think very beneficial.
But, Senator Lee, please feel free to respond.
Senator Lee. Congressman Johnson, I certainly appreciate
your concerns. I respect and I agree with your desire to ensure
that we have civility marking all of our proceedings in
Congress, and that is why I have gone out of my way today to
point out that this is an issue that is neither Republican nor
Democratic; it is neither liberal nor conservative.
You and I, as Members of two different Houses of Congress,
share much more in common here than we do things that divide us
on this issue. Because, as Members of the Article 1 branch, of
the legislative branch, it is our duty to see to it that the
executive branch, regardless of the partisan affiliation of the
person who holds that office, to see to it that the executive
branch doesn't tread on our power. And so I have gone out of my
way to make this not about a partisan issue.
And I will make you a deal. In the future, whenever we have
got another President, whether Republican or Democratic, if you
have got an issue that you are concerned about about that chief
executive overreaching, give me a call. I would love to talk to
you about it. And it may well be that you and I will agree that
that President, whether Democratic or Republican, has
overreached his or her authority.
But you referred specifically to the Libya situation. I
didn't identify that as the greatest overreach, but I was asked
a specific question with regard to the President's commander-
in-chief powers, whether there was anything this President had
done that I disagreed with that I thought might fit into this
category, so I identified the Libyan conflict as that. There is
gray area between the President's commander-in-chief powers and
Congress' power to declare war. Much of that has been at least
arguably clarified in the war powers resolution, but the
President didn't abide by that either.
Mr. Johnson. Well, the legislation would not trump the
Constitution, would it?
Senator Lee. And it does not in this instance.
Mr. Smith. Thank you, Mr. Johnson.
The gentleman from Utah, Mr. Chaffetz, is recognized.
Mr. Chaffetz. I thank the Chairman.
And with full disclosure, being the representative from
Utah asking a question of the Senator from Utah, it should be
fully disclosed that I am frequently called upon to give rides
to the Senator, and whenever he asked for such ride I duly
comply and drive him from place to place.
With that said, I will ask the hardball question here.
If the Senator would--you know, recess appointments can be
overused, abused. It doesn't matter if Republican or Democrat.
I think we want to help change that system. Can you offer your
perspective on that?
Senator Lee. Certainly. And I want to make clear that there
is reciprocity in the ride arrangement. I was once referred to
as the chauffeur to the chief of staff to the Governor of Utah.
Mr. Chaffetz. Then I lost rank, and now I am back driving
my own car. But, nevertheless, we will dispute that later.
Senator Lee. At the time, he had a broken foot. He had to
ride in the back seat with his foot elevated. So I literally
looked like a chauffeur. I wanted to buy a chauffeur's hat.
Recess appointments. So what we have to consider with
recess appointments is the fact that the President does have to
get Senate confirmation for executive branch and judicial
nominees. There is an exception for that, and several Members
of the Committee have correctly pointed out President's of both
parties have throughout time utilized the recess appointment of
power.
But that is not really what we are talking about here. This
is not a garden-variety exercise of the recess appointment of
power. Because the recess appointment of power has to be
exercised as outlined in Article 2, Section 2, Clause 3 of the
Constitution when the Senate is in recess. So it begs the
question, when is the Senate in recess?
Well, Article 1, Section 5, Clause 2 gives each House of
Congress the power to establish its own rules.
It goes further in Article 1. In Article 1, Section 5,
Clause 4 says that before either House of Congress may adjourn
for a period of more than 3 days it has to get the permission
of the other House of Congress.
So, in this instance, January 4, 2012, the Senate had not,
according to its own rules, been adjourned for more than 3
days. Historically, that has been regarded as at least an
important touchstone for deciding whether or not the Senate is
in recess. The Senate has never been deemed for purposes of the
recess appointment of power to be in recess during an
adjournment of less than 3 days, and so we didn't have the
House's permission to adjourn for more than 3 days. And by our
rules we had been in session about 24 hours earlier. So that is
why we have got a problem here. That is what makes this
incident different from every other exercise of that power.
Mr. Chaffetz. And then the second part that I want to talk
about, it seems to me, Chairman, that executive privilege has
not been articulated with specificity so that we know what it
is, when it should be used, when it could be used, is it
overused. I think this is a concern from the legislative branch
in general. I find it, particularly in the case of Fast and
Furious, to be overly used, such a blanket, well, we are just
going to invoke executive privilege.
Is that something that we should--and, Chairman, what I am
interested in is perhaps pursuing legislation that would
clarify and codify exactly what executive privilege is and what
it is not, where it would apply and where it would not.
Senator Lee and then other members of this panel, if you
care to respond, that would be great.
Senator Lee. I do have a response to that.
As we discussed briefly earlier, there are two varieties,
two flavors, if you will, of executive privilege here. We have
got the deliberative process privilege. But the deliberative
process privilege, according to the D.C. Circuit's own standard
that is fairly well understood, does not apply here where we
have reason to believe that government misconduct is involved.
Here the government misconduct could be said to exist in
the Administration's claim that--misleading Congress in a
letter delivered on February 11, 2000--in February 2011,
asserting that the Administration did not in fact allow gun
walking. And so that privilege doesn't really apply here.
So the other flavor of the privilege is the Presidential
communications privilege. But in order to get into the realm of
that privilege you have got to have someone involved in the
decision-making process who had what we call operational
proximity to the President, the President or the President's
immediate advisors or some combination of the two.
The claim that we had from the beginning, as I understood
it, was that there was not a lot of involvement by the
President and his closest advisors or any involvement. So one
of two things has to be true then if the executive privilege
can be properly invoked here. Either the President and/or his
very close advisors were directly involved or this privilege
may not be invoked.
Mr. Chaffetz. Does anybody else care to comment on
executive privilege and should we as a Congress be articulating
and writing in legislation what it is and what it is not?
Yes, sir.
Mr. Gerhardt. I appreciate the chance just to make a couple
of quick points.
One is I just would respectfully perhaps disagree with
Senator Lee in one regard. It may be a small one. And that is
it is not settled whether or not deliberative process is
something to which executive privilege may stand. But that is
clearly the position of the Administration, that that is what
is the basis for its assertion here.
In terms of legislation, I would say that raises a really
interesting question of constitutional law. You have given me
my exam question for my Con Law I class, whether or not
Congress could legislate the meaning of executive privilege.
But I think it would be difficult for Congress to dictate to
the President the scope and contours of that privilege.
Mr. Chaffetz. I thank the Chairman. I yield back.
Mr. Smith. Thank you, Mr. Chaffetz.
The gentlewoman from California, Ms. Chu, is recognized.
Ms. Chu. Thank you.
Before I begin with the substantive questions I want to
express my disappointment with today's hearing. We essentially
have six legislative days before we go into long recess, and
yet we are wasting time talking about the Administration's
alleged abuse of power when we could be discussing other
pressing issues. And in fact many of the issues that have been
mentioned thus far have already been discussed in previous
hearings throughout the year.
As I see it, this hearing has nothing to do with the abuse
of power. It is simply a hearing rehashing political
disagreements.
But let me ask this question about the rulemaking process
for contraceptive coverage. And, Professor Gerhardt, I would
like to ask you this question.
The way I see it is that there was extensive procedures
pertaining to this rulemaking process for contraceptive
coverage. In August 2011, the Administration announced an
interim rule regarding preventive care for women under the ACA
after months of public comment at the Institute of Medicine.
This interim rule was announced a full year before the
regulations were to go into effect.
HHS then opened a public comment period and received over
200,000 comments. In response to the public suggestion, HHS
ultimately amended their final rule to exempt religious
organizations such as churches from having to provide
contraception to their employees. But they went even further to
address the public's concern about the potential impact on
religious-affiliated entities.
In March of 2012, the Administration announced in advance
notice of proposed rulemaking and opened public comments on
that rule, which closed in June. And although the final rule on
religiously affiliated entities had not been published it is
not atypical for regulations to take several months to finalize
after the public comment has closed. Yet, in her testimony, Ms.
Windham claimed that, quote, the Administration issued the
mandate without first publishing a proposed regulation or
accepting public comment as required by Congress under the
Administrative Procedure Act.
I think it is blatantly untrue myself. But, Mr. Gerhardt--
Professor Gerhardt, what procedures does the executive branch
have to follow when promulgating regulations in order to comply
with the rule and do you believe it is an abuse of power if the
Administration provides an opportunity to comment on the
interim final rule before it is finalized?
Mr. Gerhardt. Well, of course, generally, as you know, the
APA, Administrative Procedure Act, would apply.
But I also just want to emphasize an agreement with what
you just said. I had earlier suggested that the
Administration's position on this was both evolving and
attempting to create an accommodation. That is precisely why I
think it is premature to talk about any abuse of power.
It seems to me in this circumstance at most what we may
have is a disagreement with how the Administration has
approached this and maybe with where the Administration comes
out. But I don't think that a disagreement constitutes an abuse
of power. It is a disagreement. And we are likely to have many
disagreements across a wide range of legal and constitutional
issues between one branch and another. Those disagreements
don't add up to abuses of power.
Ms. Chu. Thank you for that.
And I now would like to ask about the legal authority for
the deferred action process with regard to the DREAM students.
My colleagues on the other side of the aisle have
criticized the Administration for the decision to use
prosecutorial discretion in immigration cases, and they claim
that there is no legal authority for that. And yet I see that
there is legal authority for such an action, and in fact I
would say that it is supported by, first, the Supreme Court
precedent, including the Court's recent decision in Arizona v.
United States explaining that immigration officials have broad
discretion in the removal process, that includes whether it
makes sense to pursue removal at all; as well as the former
general counsel of the INS who wrote a memo in April of 2011
that the Administration has authority to exercise prosecutorial
discretion and offer deferred action on a case-by-case basis to
individuals based on their membership in a discrete class; as
well as the Congressional Research Service, which issued a
July, 2012, memo analyzing legal authority for the Secretary's
2012 memorandum on the exercise of prosecutorial discretion for
DREAMers; as well as nearly 100 law professors who sent a 2012
letter to the President addressing the executive's authority to
grant administrative relief; as well as our own Judiciary
Committee Chairman, Lamar Smith, Henry Hyde, and other
Republicans who sent a 1999----
Mr. Smith. Since you mentioned my name, let me respond not
only on my own behalf but on behalf of a number of others.
Because I think what you said was not true.
Prosecutorial discretion is usually given on an individual
basis, and I certainly support that. But here you have a
President abusing that particular power and applying
prosecutorial discretion to a wide class of individuals. That
is not what I intended in anything that I have said, nor do I
feel that it was intended by any of the other individuals that
you have mentioned. A few minutes ago, Senator Lee made that
distinction himself. So I think your statement in regard to
prosecutorial discretion is not accurate.
Ms. Chu. Well, let me continue then with the other sources
of legal authority. For instance, former INS Commissioner Doris
Meissner with a 2000 memorandum which lays out the strong
authority for exercising prosecutory discretion in the
immigration enforcement context and Congress which directed the
Secretary in code to establish national immigration enforcement
policies and priorities.
And so, Professor Gerhardt, how would you respond to these
claims?
Mr. Gerhardt. Well, I think you have amply summarized all
the different and wide range of support that exists for
prosecutorial discretion in this instance. I think--and I would
just point out or reemphasize that it includes the statement in
Arizona v. United States by the majority suggesting there is
broad discretion in the Administration within this realm.
So it seems in this instance that is exactly what the
Secretary exercised. And the support that you have laid out
just demonstrates how the Administration I think in this
instance has not acted sort of hastily, without deliberation,
without consideration to support the memorandum that was issued
by the Secretary of Homeland Security.
Mr. Smith. The gentlewoman's time has expired. However, the
gentlewoman did say that a statement made by Ms. Windham was
false, and I would like to give her a chance to respond to that
assertion.
Ms. Windham. Thank you, Mr. Chairman.
If you want to know whether the statement I made is
correct, you need to look no further than the text of the
interim rule itself. The Administration said when they made
this interim final rule that they had the authority to suspend
the normal APA procedures and go straight to the interim final
rule stage.
The legally operative term there is final rule. They
published this rather than publish a proposed rule and take
notice and comment, because they said this was an issue of
great public importance. We believe it is an issue of great
public importance that the Administration has chosen to
restrict religious freedom for millions of Americans while
exempting, as they have estimated, 100 million Americans from
this mandate for reasons of convenience and cost. And that is a
violation of religious freedom and a violation of the
Administrative Procedures Act.
Mr. Smith. Thank you, Ms. Chu.
The gentleman from South Carolina, Mr. Gowdy, is
recognized.
Mr. Gowdy. Thank you, Mr. Chairman.
Senator Lee, I want to say I am actually delighted to have
you here; and to have a United States Senator with your
constitutional acumen answering questions from House Members,
some of whom lack that constitutional acumen, is really a
testament to you. So I appreciate your being here. You have
appeared before other Committees, and the fact that you would
be willing to come and answer questions from us is a testament
to your character.
Mr. Chairman, when I saw the title of this hearing, I was
vexed, because I didn't know where to start. Do we start with
Solyndra and the abuses of favoring certain industries over
others, certain applicants over others, helping certain
applicants to draft their loan proposals, using private email
to communicate so there would be no record? Do we start with
this Administration's failure to execute laws with which it
disagrees, regardless of one's opinion on the Defense of
Marriage Act, Mr. Chairman? It was passed by both bodies and
signed by the President, a rare feat indeed these days, Mr.
Chairman.
In fact, if memory serves me, the President who signed the
Defense of Marriage Act into law was none other than the former
convention speaker, President Bill Clinton. And that is fine.
People change their mind. That is what happens in a
representative democracy. You change your mind.
Where I disagree with this Administration is you have to
change the law. You don't just summarily decide that you are
not going to enforce laws that have been duly passed and signed
by the chief executive. And this Administration, Mr. Chairman,
turned the doctrine of prosecutorial discretion on its head. It
has summarily refused to prosecute certain laws.
So, Mr. Chairman, what I would appreciate from my friends
on the other side of the aisle is a list, a roster of which
laws I need to tell my constituents they need to follow and
which ones they don't need to follow. Prosecutorial discretion
is not announcing in advance in an election year because you
are trying to court a certain constituency that we are not
going to enforce this law. If you don't like the law, change
it.
Or should we, Mr. Chairman, talk about executive privilege,
as Mr. Chaffetz did? Should we contrast Candidate Obama's
position on the use of executive privilege with President
Obama's invocation of the doctrine? That, Mr. Chairman, would
be a fine exercise to me, to have a debate between Senator
Obama and President Obama. I don't know who the folks at MSNBC
would pull for in that debate, Mr. Chairman.
Or should we talk about the transformation of energy
secretary Steven Chu, who at one time advocated for European
level gas prices $10 a gallon and then had an epiphany timed
almost exactly with his confirmation hearing where he wanted
lower gas prices?
Or do we discuss recess appointments and again how Senator
Obama had a different perspective from President Obama? And
color me naive, Mr. Chairman, for thinking that the phrase
``recess appointment'' would mean the exact same thing when a
Republican was in power than when a Democrat was in power.
Let the chronology be on the sequel, Mr. Chairman. With the
NLRB, that vacancy existed for 6 months. In December, mid-
December, the President sent a name to the Senate, and then 10
days later he makes a recess appointment. Under his version, a
nap, a lunch break in the United States Senate, both of which
happened from time to time, would constitute sufficient recess
for him to make a recess appointment.
Do we discuss Fast and Furious and this, the most
transparent Administration since the Earth cooled, withholding
documents and having to be sued and held in contempt of
Congress to simply turn over documents?
Do we focus on how a demonstrably false letter could be
written on Department of Justice letterhead and then withdrawn
10 months later?
I have decided, Mr. Chairman, to focus on Secretary of
Health and Human Services Kathleen Sebelius balancing my right
to the free exercise of religion with her desire to require
that health insurance include free--whatever that word means--
contraception. And I would invite anyone who is interested to
go back----
Secretary Sebelius appeared before the Education and
Workforce Committee, and I asked her, Senator Lee, about the
constitutional basis for this rule, and I was stunned at her
reaction. She could tell you the political ramifications of the
rule. She could tell you the electoral math ramifications of a
rule. She never once consulted the Constitution. She couldn't
tell me whether you have a compelling interest in free
contraception. She couldn't tell me how this was the least
restrictive means or the least restrictive way of accomplishing
this goal, even if she met the first prong.
Her response was that she is not a lawyer, as if you have
to be one to read the Constitution and understand it. So I am
going to give the award to her.
And I know I am out of time. If I could have 30 more
seconds, Mr. Chairman.
Mr. Smith. Without objection, the gentleman is yielded an
additional minute.
Mr. Gowdy. Senator Lee, I would love for you, just on this
recess appointment, once and for all, is my chronology wrong? I
think you got the name in December, and then there was an
appointment made a couple of weeks later. And with the CFPB
this is a nascent entity. It has never existed before. But
somehow or another having a director is of constitutional
significance. Who controls the calendar in the Senate? I
thought the Democrats were in control. I thought they could
schedule a hearing on Mr. Cordray. I thought they could
schedule a vote on it.
So I will give the rest of my time to you.
Senator Lee. The Senate does in fact have control over its
own calendar. Article 1 makes that pretty clear. The Senate did
convene in a session that was held on January 3, 2012, about 24
hours before the recess appointments were made.
Now to answer your question, one of these recess appointees
had previously been considered by the Senate but had not been
approved. Votes could have been scheduled at any time, of
course. The votes, as it was understood by the party holding
the majority, were not there to secure his confirmation, and so
that one didn't happen.
Now, with the other three, the other three recess
appointees had not previously been reviewed by the Senate. We
had not even had an opportunity to review them to that point.
Mr. Gowdy. Thank you, Senator.
I thank the other witnesses, and I yield back.
Mr. Smith. Thank you, Mr. Gowdy.
Let me also thank Senator Lee, Ms. Windham, Mr. Gerhardt,
and Mr. Casey for their testimony today. I think we have had an
excellent discussion. This was a high-level panel. I appreciate
your time. Thank you again for your contributions.
And we stand--not yet adjourned. Without objection, all
Members will have 5 legislative days to submit additional
written questions for the witnesses or additional materials for
the record. And we stand adjourned.
[Whereupon, at 12:40 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, Jr., a
Representative in Congress from the State of Georgia, and Member,
Committee on the Judiciary
Mr. Chairman, this hearing on the ``Obama Administration's Abuse of
Power'' should be called the ``Republican Congress' Abuse of Power.''
There are many important and timely issues that this Congress has
not yet addressed. But rather than confronting the serious challenges
that face this Congress, this committee is intentionally wasting
valuable time on divisive issues to influence a presidential election.
Rather than exploring this issue in an honest and fair title, the
majority has chosen a title that is wildly inappropriate, accusatory,
and incendiary. What's worse, we have already addressed these issues in
at least one committee or subcommittee hearing. It is terrible
precedent to hold a hearing on stale issues for the sole purpose of
racking muck over any president prior to an election.
I am also saddened by the majority's short memory. Under the Bush
Administration, executive authority experienced its largest expansion
in decades.
President Bush's use of signing statements--the official executive
branch pronouncements a President makes when signing a bill into a
law--is a prime example of abuse of power. In a report by the American
Bar Association, a bipartisan group of legal scholars criticized the
Bush Administration's use of signing statements, calling them a
``radically expansive view of executive power'' and a ``serious assault
on the constitutional system of checks and balances.'' President Bush
often asserted his own interpretation laws passed by this body, even
where his interpretation wasn't consistent with Congress' legislative
intent.
But the Bush Administration's signing statements didn't merely
disregard legislative intent. These statements also avoided
constitutional questions or created new sources of presidential power
by loosely interpreting statutory language or construing large
provisions as support for the Commander-in-Chief Clause or unitary
executive theory. In another example, President Bush's signing
statements consistently refused to honor Congressional attempts to
impose affirmative action or diversity requirements on federal hiring.
Senator Arlen Specter, a Republican and then-Chairman of the Senate
Judiciary Committee, charged that congressional legislation ``doesn't
amount to anything if the president can say, `My constitutional
authority supersedes the statute.'''
But the Bush Administration's abuse of power did not stop at
signing statements. President Bush again abused his executive power
through his expanded use of wartime powers, while abrogating
international law without any historical support in the process. John
Yoo's ``torture memo'' applied the executive's power to authorize
water-boarding and other forms of torture. This position expressly
conflicted with the official U.S. position on torture, which is that no
American law permits or excuses torture.
Lee Casey argues in his written testimony that the Obama
Administration has gone ``beyond the normal cut and thrust of
partisanship and politics.'' But what if an administration appointed
like-minded officials who lack relevant experience to advance a
partisan agenda? Both the Office of the Inspector General and the
Office of the Professional Responsibility found that President Bush did
precisely this. In a joint investigation within the Department of
Justice under the Bush Administration, these offices found that the
Bush Administration packed the Civil Rights Division with conservative
lawyers without civil rights experience. The Government Accountability
Office later reported that this politicized hiring might have altered
the DOJ's enforcement of voting laws through a conservative strategy.
Today's hearing confuses fundamental disagreements over policy with
true abuses of executive authority. Healthy debate between parties and
branches of government is vital to the livelihood of a vibrant
democracy, and evidence of the Founder's aspirations for a government
with three separate branches.
This is just another example of a Do Nothing Congress focused more
on defeating President Obama than addressing important issues.