Chuck Grassley

United States Senator from Iowa

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President Obama’s Abuse of Executive Action and Mass Amnesty

Nov 19, 2014

Prepared Floor Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
President Obama’s Abuse of Executive Action and Mass Amnesty
Wednesday, November 19, 2014

In his State of the Union address last January, President Obama announced what he called a year of action.  Armed with a pen and a phone, he promised to take action where Congress wouldn’t.  At the time, I warned that these threats were a gathering danger to the separation of powers established in the Constitution.

The President is now threatening to implement a mass amnesty from our immigration laws by executive fiat.  He plans to act without the support of Congress or the American people.  In fact, he has conveniently waited until after the recent elections to do so, to avoid being punished at the ballot box.

This executive order will be the culmination of his self-proclaimed year of action.

The President may think of this executive action as a political victory in a year filled with so many failures and defeats for him and his party.  But history will surely view it as a serious blow to the system of checks and balances established by the Framers.   In reality, this was a year in which the President’s abuse of executive power came into clear focus.

Today I’d like to review President Obama’s pattern of unconstitutional executive action this year.  I’d like to explain why the mass amnesty he is threatening is merely the latest in a long list of abuses of his executive authority.  And I’d like offer a few thoughts about what the Senate can do about these kinds of abuses.

After the President’s State of the Union address, I wrote to the Attorney General on January 31st.  I wrote that I was “gravely concerned that the system of checks and balances enshrined in the Constitution [was] threatened by the President’s determination to take unilateral action.”

In short, I made clear, that “while the President has a pen and a phone, we have a Constitution that places limits on his use of them to issue Executive Orders.”

Indeed, my concern about the President’s threat to take action on his own was “heightened by the administration’s record of failing to discharge its constitutional duty to ‘take Care that the Laws be faithfully executed.’”

By then, President Obama had already failed to execute the law in many areas.  For example, the administration was re-writing Obamacare deadlines at will, and was making little effort to enforce the Controlled Substances Act in some states.  These abuses rang like alarm bells in the night even before the so-called year of action began.

Indeed, in December 2013, a liberal law professor testified before the House Judiciary Committee that “despite the fact that I once voted for President Obama, personal admiration is no substitute for the constitutional principles at stake in this controversy.”

He continued: “When a president claims the inherent power of both legislation and enforcement, he becomes a virtual government unto himself.  He is not simply posing a danger to the constitutional system; he becomes the very danger that the Constitution was designed to avoid.”

Against this backdrop, I asked the President to defend the legal basis for the actions he was threatening.   In my letter, I asked the Attorney General to direct the Justice Department’s Office of Legal Counsel to publicly disclose its opinions concerning the lawfulness of the executive orders proposed by the President.

That’s what the Office of Legal Counsel does – it reviews all executive orders to determine whether they are constitutional and lawful.  Many of its opinions have been made public in the past.

I hoped that this transparency would allow Congress and the American people to better understand the alleged legal basis for these orders, and challenge them if necessary.

Providing Congress and the American people with the legal opinions supporting his unilateral actions seemed like a reasonable request of a President who had claimed to support an “unprecedented level of openness” and transparency in government.

February passed.  March as well.  April came and went.  Winter turned to spring, and summer was around the corner.   And on May 20th, I finally received a response from the Justice Department.  In summary, the department told me no, they wouldn’t disclose these opinions to the public.

However, the Department assured me, if I had questions about a particular Office of Legal Counsel advice document, it would assist me in understanding it “to the fullest extent possible.”

In short, the administration stonewalled legitimate questions from Congress, as it so often does.
 
As it turned out, within a few weeks, I and many others in Congress had very serious questions about a specific executive action and its effect on our national security.  And we had questions about the advice provided by the Office of Legal Counsel.  The American people did as well.

In early June, the President decided to release five Taliban detainees held at Guantanamo Bay in exchange for Sergeant Bowe Bergdahl, a U.S. soldier who had been captured in 2009.

The detainees were reportedly senior-level Taliban commanders.  Some had direct links to al-Qaeda.  And all were reportedly determined to be of high risk to the United States and were recommended for continued detention.  Nonetheless, President Obama decided to free them from Guantanamo.

There was one problem, however.   The National Defense Authorization Act required that the administration notify Congress 30 days before any detainee was transferred from there.

Under this statute, the notification was required to include lots of detailed information – about the basis for the transfers, why they were in our national security interest, and any actions taken to prevent detainees from returning to the battlefield.

In fact, none of this information was provided to Congress before these detainees were released, as the law requires.  And perhaps not coincidentally, this was information that members of Congress and the American people were very interested in learning.  There were – and still are – serious questions about whether releasing these detainees from Guantanamo was a good idea.

So the President decided to act alone, without regard for Congress’ role in our system of checks and balances, and directly contrary to a law he had recently signed.

Then, the administration began changing its story about why it broke the law.  First, they said it was Sergeant Bergdahl’s health that required his release without notifying Congress.  Then they said it was operational security surrounding the release itself.   Then they said it was the nature of the negotiations with the Taliban.

But there was one point administration officials were clear about: the Department of Justice had provided legal advice that justified transferring these detainees from Guantanamo without informing Congress, as the law required.

This was difficult to square with the limited powers of the executive established in the Constitution.  In Youngstown Sheet and Tube Company versus Sawyer, otherwise known as the Steel Seizure case, the Supreme Court set a clear precedent establishing these limits.  In that case, the Supreme Court held that President Truman’s executive order seizing steel mills to avoid a strike during the Korean War was unconstitutional.

In doing so, the Court emphasized that the Executive isn’t above the laws written by Congress.  “The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times.  It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice.  Such a review would but confirm our holding that this seizure order cannot stand.”

Moreover, Justice Jackson emphasized that when, as here, “the President takes measures incompatible with the expressed or the implied will of Congress, his power is at his lowest ebb.”

Just as the Supreme Court held that President Truman had unlawfully seized the steel mills, President Obama’s release of the Taliban detainees without the required notification effectively re-wrote the law contrary to the will of Congress.

In short, there didn’t seem to be a lawful basis for what the President had done.  In fact, it seemed plainly illegal.

So I took the department up on its offer.

In a letter to the Attorney General dated June 5th, I requested that he direct the Office of Legal Counsel to make public “its opinions, analyses and conclusions concerning the lawfulness of the transfer . . .  without compliance with the statute that requires congressional notification.”

I added that it was “obviously too late for Congress to express its concerns about these transfers in time to prevent them.  However, this measure of transparency will at least allow the American people to better understand the Administration’s purported basis for ignoring the legal requirement that Congress be notified in advance, and shed additional light on this controversial decision.”

It’s now six months later, and the Attorney General hasn’t given me the courtesy of a response to my letter.  We still don’t know how the department justified the release of these detainees.  We don’t know the legal basis or the underlying facts that were relied upon.

That just isn’t acceptable.  But sadly, it’s become commonplace with the Obama Administration.

It turns out that to this Justice Department, assisting me “to the fullest extent possible” is actually indistinguishable from ignoring my request completely.

Shortly thereafter, in August, the Government Accountability Office concluded that the administration acted illegally when it released these senior-level Taliban commanders from Guantanamo without notifying Congress.

Now let’s be clear.  That wasn’t a member of Congress reaching that conclusion.  It wasn’t a political operative or a talking head on television.  It was an independent, non-partisan government agency.

And so the GAO effectively said: President Obama, you broke the law.

So perhaps it makes sense that the Department of Justice couldn’t respond to my letter.  Maybe even the very smart lawyers in the Office of Legal Counsel couldn’t come up with a justification for what happened that passed the laugh test.

But that wasn’t the only rebuke the President suffered this year after trampling on Congress’ role under the Constitution.  The Supreme Court was forced to rein in President Obama as well, in a dispute over his power to make recess appointments.

Article II, Section 2 of the Constitution provides for only two ways in which Presidents may appoint certain officers.

First, it provides that the President nominates, and with the advice and consent of the Senate, appoints various officers.

Second, it permits the President to make temporary appointments when a vacancy in one of those offices happens when the Senate is in recess.

Back in 2012, President Obama made four appointments to various Executive Branch positions.  They were purportedly based on the Recess Appointments Clause.  But he took this action even though they weren’t made, in the words of the Constitution, “during the recess of the Senate.”

No President in history had ever tried to make recess appointments when the Senate said it was in session.  But this President once again decided to go around Congress.

In June of this year, the Supreme Court struck down these appointments as unconstitutional.   It wasn’t a split decision.  It wasn’t five to four along party lines.  It was unanimous.  Every justice agreed – those appointed by both Republicans and Democrats.   That included two justices appointed by President Obama himself.  

It was the Supreme Court’s biggest rebuke to any President since 1974, when it ordered President Nixon to produce the Watergate tapes.

This was a case where the Office of Legal Counsel’s opinion didn’t pass the laugh test.

And so the Supreme Court unanimously said:  President Obama, you broke the law.

So this purported year of action has brought into focus a President with little respect for the roles of the co-equal branches of government, unwilling to explain the legal basis for his actions, and rebuked by the courts and independent agencies for overstepping his bounds.

Now President Obama is threatening to act unilaterally on immigration.  If you thought that this year’s events so far would have given the President pause about his “go it alone” approach, apparently, you would be wrong.

Of course, one of the reasons I oppose mass amnesty is because it’s bad policy.  Immigration reform should begin with securing our borders.  Border security is among the most basic responsibilities of any country.

But this administration hasn’t done that.  To the contrary, according to recent news reports, it has freed alleged kidnappers, rapists and murderers into communities in the United States rather than deport them.  It has sacrificed public safety in order to provide relief for people who are here illegally.
   
But the President’s unilateral action on immigration isn’t just bad policy.  It’s contrary to the rule of law.  It’s unconstitutional for the executive branch to nullify, or even unilaterally re-write, the immigration laws that the people of the United States, through their elected representatives, have chosen to enact.

We have been hearing about the possibility of an executive action on immigration for many months.  It will apparently involve steps to allow millions of people illegally present in the United States to live, work, and collect benefits here.

The Democratic leadership wants to compare what’s being threatened here to the executive actions of past presidents on immigration.  But the actions of Presidents Reagan and Bush were merely tying up loose ends, carrying out a law Congress had just passed.  They established policies that were later put into statute in 1990.  President Obama is threatening to act directly against the wishes of Congress, and on a far greater scope and scale.

That is why I and twenty-one other Senators wrote to the President on April 24th to express our grave concerns about the lawfulness of what was reportedly under consideration.  

Apparently, our warnings aren’t being heeded.

And now, if the President acts after repeated calls by congressional leaders not to do so, it will severely damage his relationship with the new Congress elected by the American people.

But the core issue is this: under our Constitution, the Congress makes the law.  And under Article II, Section 3, the President is charged with taking care that these laws are faithfully executed.

But if President Obama effectively legalizes people who are here unlawfully, no one will be able to reasonably argue that he is faithfully executing our immigration laws.  Once again, that doesn’t pass the laugh test.

And so like the GAO and the Supreme Court earlier this year, I say: President Obama, if you take this executive action on immigration, you’ll be breaking the law.  Even more than that – you’ll be violating the Constitution.

And the President knows this.  Just a few years ago, he conceded:  “This notion that somehow I can just change the laws unilaterally is just not true.  The fact of the matter is there are laws on the books that I have to enforce.  And I think there's been a great disservice done to the cause of getting … comprehensive immigration [legislation] passed by perpetrating the notion that somehow, by myself, I can go and do these things.  It’s just not true.  We live in a democracy.  You have to pass bills through the legislature, and then I can sign it.”

The President was right then, even if he doesn’t want to live by his own words now.  There are no short-cuts to following the Constitution.

Now, what we’re likely to hear from the administration is that this executive action is simply a lawful exercise of enforcement discretion.
 
It’s not.

Lawful enforcement discretion is exercised on an individualized, case-by-case basis.  So whether enforcement action takes place is informed by a careful evaluation of the facts of a particular case, as each case presents itself.

Lawful enforcement discretion isn’t selecting entire categories of individuals, and telling them that, going forward, the law won’t be applied to them.

That’s what President Obama is threatening to do.

This shouldn’t only concern constitutional scholars and lawyers.  It is no exaggeration to say that the freedom of the American people is at stake.  That’s what the Framers believed.  In Federalist 51, James Madison wrote that the “separate and distinct exercise of the different powers of government” is “essential to the preservation of liberty.”

Moreover, in the Steel Seizure case, Justice Frankfurter warned that “the accretion of dangerous power does not come in a day.  It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”

President Obama’s actions this year reek of unchecked disregard of the restrictions of his authority.

In his remarks after the recent elections, President Obama repeatedly emphasized that his executive action would be lawful.  But as this year has shown, he has repeatedly acted illegally even though the Department of Justice had assured him otherwise.

The Office of Legal Counsel doesn’t appear to be providing independent legal advice to the President – it’s simply rubber-stamping whatever he wants to do.

So it’s cold comfort for the President to assure us that anything he would do is legal.

Let’s go back to the bedrock principles of our country’s founding.  The Framers of our Constitution knew an abusive executive when they saw one.  They sent the Declaration of Independence to a King who had ignored and abused their legislatures and laws.

And the Framers would also have recognized the specific kinds of executive abuses reflected in President Obama’s mass amnesty.  They would have referred to them as the royal suspending and dispensing powers.

But George III didn’t even try to abuse the colonists with these powers.  Why? Because Parliament had denied them to the King a hundred years before the American Revolution.

You see, Kings of England had traditionally asserted the power to suspend the operation of certain laws or to grant dispensations prospectively excusing particular individuals from compliance.  But as deference to the King’s authorities eroded, these powers became more controversial.

As part of the Glorious Revolution in the late 17th century, these royal powers were terminated.  The first two articles in the English Bill of Rights of 1689 made it illegal for the King to exercise the “pretended power of suspending the laws” and “dispensing with laws.”

This happened a century before our own Constitutional Convention.  So when the Framers met in Philadelphia, these were abuses long since remedied in England.  Instead, the Framers charged the President with the constitutional duty to take care that the laws are faithfully executed.

With his talk of mass amnesty, President Obama is threatening to abandon this constitutional duty.  He is threatening to re-assert royal powers that even the Framers thought were long abolished.  He is threatening to take our country backward, a century before the American Revolution.

When talking about immigration policy, the President has acknowledged that he “isn’t a King.”  He shouldn’t act like one.  

During the President’s remaining two years in office, how should the Senate respond to the President’s illegal executive action on immigration or any other of these kinds of executive abuses?

In some cases, we can use the power of the purse to defund them.  In other cases, we may use our congressional oversight tools to expose them.  And in still other cases, we may be able to pass legislation to do away with them completely.

These tools have been available to the Senate since President Obama was elected.  But it should come as no surprise that the Democrats in the Majority didn’t use them to confront his abuses of power.

In the 114th Congress, we Republicans intend to use them.

I yield the floor.
 

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