House Judiciary Committee Considers Obama's 'Go It Alone' Approach to Executive Power

By Fred Lucas | September 12, 2012 | 3:32pm EDT

President Barack Obama steps off his campaign bus during an unannounced stop at Ossorio Bakery and Cafe, Sunday, Sept. 9, 2012, in Cocoa, Fla. (AP Photo/Pablo Martinez Monsivais)

( – Citing use of executive privilege to withhold information from Congress, using end runs around Congress on issues of immigration and appointment and violating religious freedom, Congressional Republicans and constitutional experts said President Barack Obama has abused his power.

“President Obama has treated the Constitution’s separation of powers as if it were a matter of convenience that may be ignored when it gets in his way,” Sen. Mike Lee (R-Utah), a former constitutional attorney and Supreme Court clerk, said in his testimony to the House Judiciary Committee Wednesday.

“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 has exceeded the proper bounds of executive power,” he said.

The committee held a hearing Wednesday titled, “The Obama Administration’s Abuses of Power,” which some Democrats on the committee called incendiary. For his part, Obama has made numerous executive actions, with a slogan, “We Can’t Wait,” referring to congressional action.

Judiciary member Rep. Hank Johnson (D-Ga.) said the hearing was “an attempt to talk to the extremist, tea party, Republican element of the electorate. This is an attempt to agitate them, to fire them up, to exaggerate and make them think that the president has embarked upon an unprecedented abuse of privilege or power.”

“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 as a political tool to be used against a sitting president,” Johnson said during the hearing.

“And quite frankly, Sen. Lee, I’m wondering if your appearing here today in this venue is actually an unprecedented act of a sitting United States congressman. I never heard that this would happen, a United States senator – and I grant you, you are duly elected by the citizens of the state of Utah. You were sworn in Jan. 3, 2011, so you are new here,” he said.

“I think we owe our founders, our framers the dignity in the offices that we hold to act in accordance with their lofty aspirations,” Johnson added.

Rep. Lamar Smith (R-Texas) asserted that numerous senators have testified in front of the House Judiciary Committee.

“The administration has repeatedly put its partisan agenda above the rule of law,” Smith said. “In doing so, it has eroded the constitutional and legal foundations that have kept America prosperous and free for over 200 years.”

Specifically, members cited the administration’s decision not to prosecute cases against illegal aliens under the age of 30, issuing a waiver to the No Child Left Behind education law for states, making “recess appointments” to the National Labor Relations Board and the Consumer Finance Protection Board while the Senate was still in session, withholding documents on the Fast and Furious gunrunning scandal from the House, and mandating that all employers provide coverage of abortifacients, sterilization and contraception regardless of their religious beliefs.

Just over a year before Obama’s Homeland Security Department’s June decision to unilaterally stop enforcing immigration laws against illegal aliens under the age of 30, Obama said at the March 28, 2011 Univision Town Hall on Hispanics and Education, “With respect to the notion that I can just suspend deportations through executive order, that's just not the case, because there are laws on the books that Congress has passed – and I know that everybody here at Bell is studying hard, so you know that we've got three branches of government.”

Regarding the contraception mandate by the Department of Health and Human Services, the Beckett Fund, a religious liberty legal group is suing on behalf of Belmont Abbey College in North Carolina, Colorado Christian University, Eternal Word Television Network, Ave Maria University, and Wheaton College to block the rule, said the organization’s general counsel, Lori Windham.

“If the government can trample First Amendment freedoms, then none of our fundamental rights are secure,” Windham said.

Michael J. Gerhardt, a constitutional law professor at the University of North Carolina Center on Law and Government, told the committee that he believed Obama’s executive actions were not extraordinary.

“To assess whether they have been made in good faith, we can examine the president’s transparency and candor in making constitutional judgments,” Gerhardt said. “I believe that this president, like most presidents, has made his constitutional reasoning.”

Lee said executive overreach does not mean a president is a bad person.

“These things happen because presidents are human beings. Humans are themselves self-interested, and they’re also fallible. Those two things, when coupled with power, lead to abuses of power,” Lee told the House committee.

“I don’t think abuse of power refers to anything criminal necessarily. It can be that, but it doesn’t necessarily involve that. With regard to how we deal with it, we deal with it in precisely the manner prescribed by the Constitution,” Lee continued.

“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, our property so to speak, we hold hearings. Perhaps we pass legislation, but most importantly we can’t ignore abuses of power, because if we ignore, it becomes part of established practice and tradition,” he added.

Rep. Steve King (R-Iowa) talked about what options Congress might have.

“If the president can declare the Senate not to be in session when they’re in session, then he has effectively muted the effort of the Senate all together. We have the ability in the House to withhold funding to implement or enforce the overreach of executive branch of government,” King said.

Lee also addressed Obama’s use of executive privilege to withhold Justice Department documents on Operation Fast and Furious from the House Oversight and Government Reform Committee.

“With respect to the presidential communications privilege, the executive branch may only assert that privilege for communications made in ‘operational proximity’ to the president—communications at a level ‘close enough to the president to be revelatory of his deliberations or to pose a risk to the candor of his advisers,’” Lee said. “Accordingly, either high-level administrative officials were involved in misleading Congress, or the White House is improperly asserting executive privilege.”

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