Mike Lee Gives Eric Holder the Grilling of a Lifetime Over Obama’s Use of Executive Orders: ‘I Respectfully, but Forcefully, Disagree’
Attorney General Eric Holder was
unable to explain to Congress why President Barack Obama was within his
constitutional limits when he issued an executive order to delay
Obamacare’s employer mandate. The nation’s top law enforcement officer
said he hasn’t looked at the analysis in “some time” and thus was unsure
of where along the constitutional spectrum the order is permitted.
AP Photo/J. Scott Applewhite, File)
The surprising admission came after
Sen. Mike Lee (R-Utah) grilled Holder for several minutes on the
constitutional limits of executive orders and the executive branch
during a Senate hearing on Wednesday.
“I’ll be honest with you, I have not
seen — I don’t remember looking at or having seen the analysis in some
time, so I’m not sure where along the spectrum that would come,” Holder
replied after Lee pressed him about the employer mandate delay.
Lee came prepared, prefacing his
question with an explanation of the standard legal test for executive
orders. The test, first discussed by Supreme Court Justice Robert
Jackson, argues the president’s authority to issue executive orders is
strongest when he “does so with the backing of Congress (category one),
more dubious when he issues an order pertaining to a topic on which
Congress has not passed a law (category two), and weakest when the
executive order is “incompatible with a congressional command” (category
three), to use Lee’s paraphrase,” the Washington Examiner reports.
After Holder’s “not sure” answer
regarding the employer mandate, Lee asked about the president’s
constitutional authority to unilaterally raise the minimum wage for
federal contractors.
“Again, without having delved into this without any great degree—“ Holder began.
“But you’re the attorney general, I’m sure he consulted you,” Lee interrupted.
Holder admitted there have been
consultations with the Justice Department. He said the minimum wage
executive order would probably fall under category one and relates to
the president’s ability to regulate things that involve the executive
branch.
“I think there’s a constitutional
basis for it, and given what the president’s responsibility is in
running the executive branch, I think that there is an inherent power
there for him to act in the way that he has,” Holder said.
Lee then asked Holder about the
president’s decision to unilaterally delay Obamacare’s employer mandate a
second time — and he got the same answer.
Watch the tense exchange below:
After Lee was done questioning Holder,
he proceeded to lecture the attorney general on the importance of
ensuring no one person in government is allowed to accumulate too much
power.
“This is very, very important,” he
said. “It could be very helpful for you to release legal analysis
produced by the office of legal counsel or whoever is advising the
president on these issues. It’s imperative within our constitutional
system that we not allow too much authority to be accumulated in one
person.”
“It’s one of the reasons why we have a Constitution, is to protect us against the excessive accumulation of power.”
In response, Holder argued that Obama
would never abuse his executive authority and act outside of the
Constitution. He also claimed that President Obama has utilized
executive orders less than his predecessors.
“General Holder, I respectfully, but
forcefully, disagree with the assertion — if this is what you’re saying —
that because the number of executive orders issued by this president
might be comparable to the number of executive orders issue by previous
presidents, that that means he hasn’t made more use of it than other
presidents have.”
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