Hearing Wrap Up: Task Force Examines President’s Unilateral Changes to Health Care and Immigration Laws

Washington, D.C.  – The Task Force on Executive Overreach today held its second hearing titled “Executive Overreach in Domestic Affairs Part I – Health Care and Immigration.” At the hearing, members heard from several legal experts and examined recent examples of executive overreach in which President Obama has failed to faithfully execute the law, including his failure to constitutionally implement the Affordable Care Act and his abrogation of the nation’s immigration laws. The Facts:

• In the Affordable Care Act, Congress provided for clear statutory deadlines for compliance, including the mandate requiring employers to comply with the law after December 31, 2013. Yet the Obama Administration has unilaterally stated its policy is to rewrite the law, not by working with Congress, but through blog posts, regulatory “fact sheets,” and letters.
• Additionally, the Obama Administration has admitted to using federal taxpayer money to pay subsidies to insurance companies under the Affordable Care Acteven though appropriations for such payments were never made by Congress. This issue led to a federal district court judge allowing the House of Representative’s lawsuit challenging the Administration’s use of non-appropriated funds to proceed.
• In November 2014, President Obama unilaterally created a program that would suspend immigration laws for potentially over four million people who are in the United States illegally, which is not allowed under the immigration laws passed by Congress. President Obama did this despite the fact that he previously stated over 20 times that it would be illegal for a president to take such a position. A lawsuit challenging this program has successfully made its way to the Supreme Court where it is currently pending.

Hearing Takeaways:

• Professor Josh Blackman testified that executive law-making poses a severe threat to the separation of powers and the rule of law. He argued that partisan gridlock does not give the President a license to legislate on his own and circumvent Congress. He urged Congress, not just the courts, to take steps to halt this threat to the Constitution.
• Elizabeth Papez, the former Deputy Assistant Attorney General for the Office of Legal Counsel at the Department of Justice, told members that changing political or economic circumstances do not allow the Executive Branch to make unilateral changes to our nation’s laws.
• In addition to the President overstepping his constitutional authority, Elizabeth Slattery, a legal fellow for the Heritage Foundation, testified that administrative agencies exacerbate the problem of executive overreach and have become an unaccountable fourth branch of government.

Key Videos:Task Force Chairman Steve King’s (R-Iowa) opening statement:“While the President has defined constitutional powers in foreign and military affairs, he does not have any legislative power under the Constitution, outside his power to veto legislation presented to him.  Consequently, presidential abuses of power in domestic affairs are particularly grave threats to the individual liberty protected by the Constitution … The President claims the concept of ‘prosecutorial discretion’ allows him to permit at least four million people who are here illegally to cut in line to stay here under a suspension of the immigration laws …  That number – four million people – is staggering, and under its weight the concept of prosecutorial discretion – which is intended to encompass individual, case-by-case determinations – flattens to nothing.” House Judiciary Committee Chairman Bob Goodlatte’s (R-Va.) exchange with Professor Josh Blackman: Goodlatte: “If a President can unilaterally suspend immigration laws for at least four million people by using prosecutorial discretion … what limiting principle could stop the president from granting, for example, capital gains tax amnesty to the almost three million households who make more than $250,000 a year?”  Blackman: “This is a million dollar question that the government does not like answering … What we effectively have here is a very dangerous slippery slope. Congress needs to reassert itself in the separation of powers ... The mere fact that past presidents have done stuff and Congress doesn’t object does not make it constitutional.” Congressman Trey Gowdy’s (R-S.C.) exchange with Elizabeth Slattery: Gowdy: “What are the limits, if any, to prosecutorial discretion?” Slattery: “Certainly, prosecutorial discretion does not allow the President to exempt entire classes of individuals.” Gowdy: “President Obama’s interpretation of prosecutorial discretion is a little closer to anarchy than it is to prosecutorial discretion. I don’t say that to be hyperbolic; the reality is this: today it’s immigration laws … tomorrow it might be election laws, it might be discrimination laws, it might be some other category of law that he’s waited a couple years for Congress to act on ... so he’s just going to do it summarily.”     Background on the Task Force: The Task Force on Executive Overreach is authorized for six months to study the impact the increase in presidential and executive branch power has had on the ability of Congress to conduct oversight of the executive branch, the lack of transparency that furthers unchecked executive power, and the constitutional requirement of the President to faithfully execute the law. Additionally, the task force will review the tools at the disposal of the Congress to restore the proper balance of powers and hold the executive branch accountable. It will make recommendations where there are deficiencies, including legislative solutions.