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Holder Sees Constitutional Basis for Obama's Executive Actions

Chris Maddaloni/CQ Roll Call File Photo
Holder spoke about Obama’s use of executive actions in a Senate hearing Wednesday.

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.

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