Attorney General Eric H. Holder Jr. rebutted Republican accusations that President Barack Obama’s use of executive power is unconstitutional during a lengthy Senate oversight hearing Wednesday that touched on policy areas ranging from government surveillance to the dangers of marijuana.
Holder, appearing before the Senate Judiciary Committee hours after Obama delivered a State of the Union address in which he promised to assert his executive authority in the face of congressional gridlock, clashed with Sen. Mike Lee, R-Utah, over the legal basis for some of the president’s past unilateral actions. Republicans, including Speaker John A. Boehner of Ohio, increasingly have argued that Obama’s use of executive power to set policy without lawmakers’ input could run counter to the Constitution’s requirement that the president “take care that the laws be faithfully executed.”
Lee accused Obama of overstepping the Constitution by independently delaying the employer insurance mandate in the 2010 health care overhaul (PL 111-148, PL 111-152) despite a deadline set out in the statute. The Utah Republican, the son of a former solicitor general, called the decision “lawless” and pressed Holder to shed light on the precise legal analysis that the Justice Department conducts before the approval of Obama’s executive actions.
“It’s imperative within our constitutional system that we not allow too much authority to be accumulated in one person,” Lee said. “The president certainly owes it to the American people ... to make sure that when he does act by executive order, that he do so clearly and clearly state the basis of his authority.”
Holder acknowledged he is not familiar with the exact legal analysis DOJ conducted before Obama’s past executive actions and praised Lee for what he called his “legal analytical skills,” even telling him at one point, “You’re clearly your father’s son.” But Holder said he sees a clear constitutional grounding for the president to act on his own in certain areas, such as Obama’s announcement Tuesday that he would unilaterally raise the minimum wage for federal contract workers to $10.10 an hour.
“I think that there’s a constitutional basis for it,” Holder said. “And given what the president’s responsibility is in running the executive branch, I think that there is an inherent power there for him to act in the way that he has.”
As CQ Roll Call reported earlier this week, House Republican leaders are showing an increased interest in legislation (HR 3857) by Rep. Jim Gerlach, R-Pa., that would allow either chamber of Congress, with a 60-percent supermajority vote, to challenge executive actions in an expedited manner before a federal court in Washington. Gerlach said the bill would be a subject of discussion at the House Republicans’ three-day retreat this week in Cambridge, Md.
Lee said Wednesday that he would continue pressing for the Justice Department to release its legal justification for Obama’s executive actions.
Data Collection in Focus
The debate over executive authority was one of several notable exchanges during the three-hour hearing, in which senators from both parties also pressed Holder for more information about the National Security Agency’s collection of domestic phone records, an anti-terrorism program carried out with the legal backing of the Justice Department under a provision of the 2001 Patriot Act (PL 107-56). Obama on Jan. 17 directed Holder and the department to implement a series of changes to the program amid a bipartisan outcry over privacy concerns and potential constitutional violations.
Senate Judiciary Chairman Patrick J. Leahy, D-Vt., and former House Judiciary Chairman Jim Sensenbrenner, R-Wis., are working to scale back the records collection program. On Wednesday, Leahy was clearly skeptical about Holder’s assertions that the data collection program is authorized by laws passed by Congress.
“Congress could pass a law, for example, that would allow any police officer to seize anybody and lock him up incommunicado for five years. You could pass such a law,” Leahy told Holder. “You’re a former judge. You’re the attorney general of the United States. I think you would agree with me and everybody else that would not pass constitutional tests at all.”
In response, Holder said that 15 judges on the secretive Foreign Intelligence Surveillance Court, as well as federal judges in California and New York, have upheld the NSA program as constitutional. But he acknowledged that a third federal judge in the District of Columbia reached the opposite conclusion in a high-profile ruling in December.
Sen. Orrin G. Hatch, R-Utah, told Holder he has serious concerns about Obama’s proposal to allow private communications providers, rather than the government, to hold onto NSA data records.
“Today there are only 22 individuals at the NSA that have access to this metadata — 22 people,” Hatch, a defender of the NSA program, said. “But there are dozens of phone companies, each of which would have to maintain these records. How could you possibly provide a comparable level of supervision and accountability when this data is stored in numerous different locations and is accessible by far more individuals than it is today?”
Holder faced a series of pointed questions from Sen. Jeff Sessions, R-Ala., over comments Obama recently made in an interview in which he appeared to downplay the dangers of marijuana. Sessions asked Holder whether he agreed with that characterization, which he called “stunning” and “beyond comprehension” coming from the president.
“I think that the use of any drug is potentially harmful,” Holder responded.
Hatch and the committee’s ranking Republican, Charles E. Grassley of Iowa, also pressed Holder about marijuana, questioning the administration’s decision not to challenge state laws in Colorado and Washington that allow for the recreational use of the drug by adults. Grassley has cited the decision as another example of Obama declining to “faithfully execute” a law passed by Congress, the 1970 Controlled Substances Act, which bans marijuana.
Holder, meanwhile, also confirmed at the hearing that DOJ is investigating the recent consumer data breach at giant retailer Target.
If Holder was on the hot seat for most of the hearing, however, he also used his opening statement to call on the Judiciary Committee to pass legislation supported by the administration, including bills to reduce criminal penalties for drug offenders, protect minorities’ access to the polls and implement a treaty related to nuclear terrorism. The committee could mark up the criminal sentencing bills as early as Thursday.