Policy Feature Issue: State of the Union – The President’s Constitutional Duty to Enforce Existing Laws

The Constitution clearly establishes the role of Congress to write our nation’s laws.  In turn, the President’s responsibility, according to Article II, Section 3 of the Constitution, is “to take care that the laws be faithfully executed.”  However, the Obama Administration has repeatedly failed to enforce Acts of Congress due to policy disagreements with enacted federal legislation.  This includes everything for stretching his regulatory authority to enact policies refused by Congress, to making wholesale changes to Obamacare, despite the Administration’s lack of authority to do so.  Moreover, the IRS unfairly targeting conservative political groups and the Department of Justice refusing to release records and enforce existing laws has effectively prevented Congress from executing its Constitutional mandate to conduct oversight.

Current Issues:

  • Obamacare – The most notable of these were the following: his unilateral delay of Obamacare’s employer mandate for one year; permitting States to ignore provisions in the law regarding the grandfathered status of insurance plans; rolling back income verification requirements for state health insurance exchanges until 2015; delaying the creation of the Small Business Health Options Program (SHOP); and delaying numerous deadlines for enrollment in the exchanges.  Most recently, the President extended coverage under the Pre-Existing Condition Insurance Plan (PCIP) program – scheduled to close first at the end of the year, then at the end of January, and now will remain in place – until March 31, 2014.[1]
  • IRS Targeting of Conservative Groups – In May of 2013, Attorney General Eric Holder ordered the FBI to open a criminal probe into the IRS, after evidence surfaced revealing that they had intentionally targeted conservative political groups for additional tax auditing.[2]  On May 20, 2013, Judiciary Committee Chairman Goodlatte sent a letter to the Attorney General urging him to investigate the matter thoroughly, including whether officials willfully concealed their conduct.  The Committee has yet to receive a response to its letter, and the DOJ has been slow to release information related to the investigation.  The IRS scandal is a clear example of the Administration using its position to discriminate on the basis of politics in his execution of the laws.
  • Operation Fast and Furious – In 2011, the Department of Alcohol, Tobacco, Firearms, and Explosives (ATF) ran operations in Arizona that purposely allowed federal firearms licensees to sell firearms to illegal buyers, in order to track them to Mexican drug cartels.  However, these firearms were not properly tracked and many were used in the commission of crimes in the United States and Mexico, including in the murder of U.S. Border Patrol Agent Brian Terry.  After numerous Congressional inquiries for the release of DOJ documents related to Fast and Furious, the President invoked executive privilege when the administration refused to turn over the documents.  On June 28, 2012, Eric Holder was held in criminal contempt of Congress, and litigation is currently underway in federal court to have the documents released.  The validity of the President’s use of executive privilege has been questioned by judicial scholars, and the DOJ’s refusal to release further documents is in contradiction with Supreme Court precedent, which: 1) prohibits executive privilege from being invoked to shield wrongdoing; 2) entitles Congress to documentation that at least indicates who the final decision-maker was; and 3) yields to the need for information by other branches of government (meaning that even a proper invocation of executive privilege is not final).
  • Immigration Enforcement – The U.S. Immigration and Customs Enforcement (ICE) is responsible for the enforcement of immigration laws in the interior of the United States.  However, the administration has stated that it will focus on deporting only illegal aliens with “serious” criminal records, meaning that enforcement will rarely be taken in other cases.  In addition, the administration has expanded the scope of “deferred action” into a program called the Deferred Action for Childhood Arrivals (DACA) program, which has granted temporary legal status to over 450,000 unlawful aliens who came to the U.S. before the age of 16 (the denial rate is about .1%).  The President’s refusal to enforce existing immigration laws is problematic and unconstitutional.

Why is this Important?

  • In a December 3, 2013 Judiciary Committee Hearing, Georgetown University Law Professor Nicholas Rosenkranz argued that the President’s actions have crossed the lines of Constitutionality: “The President has a personal obligation to ‘take Care that the Laws be faithfully executed. . . .’  The President cannot suspend laws altogether.  He cannot favor unenacted bills over duly enacted laws.  And he cannot discriminate on the basis of politics in his execution of the laws.  The President has crossed all three of these lines.”
  • At the same hearing, George Washington University Law Professor Jonathan Turley agreed, and spoke of the dangers of his actions: “The danger is quite severe. The problem with what the President is doing is that he’s not simply posing a danger to the constitutional system. He’s becoming the very danger the Constitution was designed to avoid. That is the concentration of power in a single branch.”
  • The issue is not whether Americans agree with President Obama’s individual policy decisions; rather, the issue is that the President does not have the authority to unilaterally choose which laws to enforce and not enforce.  Oversight of the Executive Branch should not be a partisan issue – it is the duty of Congress to ensure that the President faithfully executes existing laws and follows the Constitution.