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.
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.”
Lee said looking at the “nature” of Obama’s use of executive orders, 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.”