2141 Rayburn House Office Building

The Honorable Bob Goodlatte

Welcome, Attorney General Holder, to your seventh appearance before the House Judiciary Committee since your confirmation in 2009. We are happy to have you here with us today.

Over the last year, we have all witnessed an extraordinary level of Executive overreach by the Obama Administration. Time after time, this President has pushed the limits on executive power beyond their Constitutional boundaries. He has repeatedly declared that, rather than faithfully executing the laws passed by the legislative branch, he will “refuse to take ‘no’ for an answer” and that “where [Congress] won’t act, I will.” Under my leadership, the House Judiciary Committee has worked diligently to oppose these broad assertions of Executive power and remind the Administration, and the American people, that our Constitution gives Congress the power to make the law, and charges the President with its faithful execution.

Our work continues today, because the Department of Justice has undertaken its own form of overreach in several instances. This is so despite the fact that legal opinions from the Justice Department under Presidents Carter, Reagan, George H. W. Bush, Clinton, and George W. Bush all agreed that while the President does not have a duty to execute laws that he in good faith determines are unconstitutional, the President may not refuse to enforce an Act of Congress for policy reasons. Unfortunately, the Department of Justice under Attorney General Holder has done just that.

For example, on October 19, 2009, Attorney General Holder announced that the Justice Department would stop enforcing the federal marijuana ban against persons who comply with state medical marijuana laws. The Justice Department’s decision not to enforce the Controlled Substances Act in states whose laws violate federal law is not a valid exercise of prosecutorial discretion, but a formal, department-wide policy of selective non-enforcement of an Act of Congress.

On August 12th of last year, the Attorney General directed all federal prosecutors to decline to charge the drug quantity necessary to trigger a mandatory minimum sentence if a defendant meets certain criteria. The Attorney General’s directive, along with contradicting an act of Congress, puts his own front-line drug prosecutors in the unenviable position of either defying their boss, or violating their oath of candor to the court.

Additionally, this Justice Department has continued to play fast and loose with federal taxpayer dollars. Every year since 1998, the Justice Department’s Inspector General has compiled a list of the top management and performance challenges facing the Department and, every year since 1999, including this year, the issue of grant management has been included.

Rather than learn from its mistakes over that 15-year period, and act to effectively administer its more than 200 grants, the Department has made a number of concerning changes to some of these programs over the last year. This includes limiting the universe of grant applicants only to prior grant recipients under a number of its Violence Against Women programs. This type of change smacks of cronyism, and it opens these programs up to potential corruption and malfeasance. It is also in direct conflict with Congress’s intent when it created competitive grants, not to mention the Department’s stated commitment to promoting new and innovative programs.

Secondly, I am concerned that this Administration has begun a profound change in how forensic science is studied and how standards are promulgated, without congressional approval or oversight. The Justice Department has permitted the National Institute of Standards and Technology (NIST) to establish brand new “Scientific Area Committees” which will replace the long-standing Scientific Working Groups (SWIGs) in forensic science that have operated for years under DOJ, and are the backbone of forensic science. We have learned that these new NIST committees are rewriting forensic standards without input from established SWIG forensics experts, contrary to Congressional intent.

Third, last summer, DOJ announced that it would break from its tradition of having all Public Safety Officers’ Benefits Program (PSOB) claims reviewed by the OJP General Counsel’s Office before an official approval or denial was made. Instead, the Department has delegated this important task to a “PSOB counsel” who reports to a political appointee. The PSOB counsel’s determination regarding the legality of a claim can also be overridden by the political head of OJP, and DOJ has reduced the evidence needed to establish a claim. These changes will allow payments to be paid that are not supported by the law, and they highlight the Department’s continued recklessness regarding taxpayer dollars, as well as the continued disregard for the limitations Congress places on how grant money should be spent.

All of this demonstrates a pattern on the part of the Obama Administration to ignore or rewrite the very legislation that places limits on Executive branch authority, for purely political purposes.

The Justice Department has the responsibility to provide legal advice, including constitutional analyses, to the Executive Branch. I find it ironic, then, that the Department has chosen on multiple occasions to act in contravention of the Constitution and Congressionally-enacted federal law. I would be interested in hearing what, if any, legal guidance DOJ – including its Office of Legal Counsel – has provided to the Administration on these Executive overreaches.

Attorney General Holder, I look forward to hearing your answers on all of these important topics today, as well as on other issues of significance to the Justice Department and the country.


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