Holder Fail: AG can't Explain why Obamacare Executive Orders are Constitutional

by Thomas Lifson


Yesterday was a bad, bad day for the Attorney General of the United States. Senator Mike Lee twice asked Eric Holder to explain the constitutional basis of President Obama's executive orders suspending parts of Obamacare, and the AG fumbled badly, essentially claiming the dog ate his homework. Joel Gehrke of the Washington Examiner:

Attorney General Eric Holder couldn't explain the constitutional basis for executive orders such as President Obama's delay of the employer mandate because he hasn't read the legal analysis -- or at least, hasn't seen it in a long time.
"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 when Sen. Mike Lee, R-Utah, asked him to explain the nature of Obama's constitutional power to delay the mandate.
Lee had based his question on a standard legal test, first described by Supreme Court Justice Robert Jackson, who said 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.
Holder assured Lee that Obama's team accounts for Jackson's three-part analysis, but said he couldn't use that test to explain in any detail what kind of authority the president wielded when he delayed the employer mandate.

Here is the video:




John Hinderaker of Powerline comments:

This is a very serious matter. For a president to issue orders for which he has no constitutional authority is the gravest possible abuse of his office. And Holder's assurance that President Obama prefers to "work with Congress," and only issues executive orders when he can't get his way by "working with Congress," is itself outrageous. Congress has the power to enact legislation; the president does not. If Congress chooses not to enact a law that the president wants, that does not empower the president to legislate via executive order.

If Obama were not the first black president, and if the mainstream media were not in his camp, this would be impeachment fodder. But alas, equal justice for all is just a faint memory for the political establishment at this point in time. As Sen. Lee put it:

it is clear the president has "usurped an extraordinary amount of authority within the executive branch."
"This is not precedented," he concluded. "And I point to the unilateral delay, lawless delay in my opinion, of the employer mandate as an example of this. At a minimum, I think he owes us an explanation of what his legal analysis was."

Thomas Lifson

Source: http://www.americanthinker.com/blog/2014/01/holder_fail_ag_cant_explain_why_obamacare_executive_orders_are_constitutional.html

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