A constitutional law professor at George Washington University said that Obama “has been far more aggressive in circumventing Congress and far more successful in creating an imperial presidency” than Bush.
The fact that most states refused to set up their own exchanges “does not justify the administration’s effort to ignore the plain language of the law,” Issa wrote.
That dispute is currently the subject of a lawsuit filed by the state of Oklahoma.
Meanwhile, critics of the administration suggest the president has increasingly relied on questionable executive actions because he can’t get Congress to bend to his will.
Some executive actions have strong legal precedent — such as a Supreme Court decision affirming the EPA’s ability to regulate carbon emissions, the centerpiece of Obama’s second-term, go-it-alone climate agenda. Others, including aspects of implementing Obamacare and the president’s decision last year to end deportations of young immigrants brought here as children, remain hotly disputed.
“It’s a fascinating transformation for Obama,” said Jonathan Turley, a constitutional law professor at George Washington University who has become one of the administration’s chief legal critics.
“He rightfully criticized President Bush for violating the separation of powers and using signing statements to rewrite legislation, but Obama has been far more aggressive in circumventing Congress and far more successful in creating an imperial presidency,” he said.
Turley, who was a House page in the late 1970s, remembers lawmakers who fiercely defended the prerogatives of Congress even from the president of their own party.
That is rarely the case today.
Turley cited the president’s decision not to enforce immigration laws with respect to young immigrants as a particularly egregious example — and one that was cheered by top Democrats.
“The president disagreed with Congress on immigration law. His response was to effectively negate the law. . . . That rocks our system to the core,” he said.
“What I find curious is how quiet Democrats have been,” he added. “What if this was a Republican president who simply told agencies that they were no longer going to enforce clean air and clean water regulations? They would cry foul. But there is no functional difference between that and what President Obama has done.”
The administration defended ending deportations of young immigrants as a use of prosecutorial discretion.
House Republicans recently voted for an amendment to prohibit funds from being used to implement that order, pitching it as enforcing the rule of law.
But such an amendment is DOA in the Senate and would be veto bait if it reached the White House.
And as for delaying the mandate, the administration is pointing to regulatory precedent, citing Section 7805(a) of the tax code for justification.
That reads, in part, the “Secretary shall prescribe all needful rules and regulations for the enforcement of this title, including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue.”
Precedents cited by the administration include an aviation fuel tax Obama signed Aug. 5, 2011, that applied retroactively to July 23, 2011. The administration delayed enforcement until Aug. 9, 2011.
In 2007, a small-business bill made changes to standards for tax return preparers to avoid paying penalties effective May 25 of that year. But the IRS announced it would not enforce the new rules on returns due before 2008.
Michael Tanner, a senior fellow at the Cato Institute, said Obama appeared to be stretching his authority to the limit.