The Growing List Of Obama’s End-Runs Around Congress And The Constitution

Last week, House Majority Leader Eric Cantor (R-Va.) refreshed his list of all the ways President Barack Obama has flouted the Constitution by shouldering the legislative burden of Congress on his own shoulders.
On his official .gov page, Cantor outlined a new batch of “Recent Examples of the Executive Branch Refusing to Faithfully Execute the Law” under the heading “The Imperial Presidency.” He’s been keeping tabs on this since October of 2012, when he first issued a list of more than 40 separate examples “of the breakdown of the rule of law” under Obama.
Here are some of the latest highlights:
Immigration Enforcement

Non-enforcement of Immigration Laws for Parents and Guardians. On August 23, 2013, the Obama administration issued a policy directive instructing Immigration and Customs Enforcement officials not to enforce immigration laws in cases in which the illegal immigrant is the primary provider for a minor child, regardless of the child’s immigration status, or in which the illegal immigrant is the parent or legal guardian of a child who is a U.S. citizen or lawful permanent resident. This is another example of President Obama abusing his authority and unilaterally refusing to enforce the immigration laws by directing officials to stop removing broad categories of unlawful immigrants.
Unlawful Extension of Parole in Place. On November 15, 2013, U.S. Citizenship and Immigration Services issued a policy memorandum providing that spouses, children, and parents of those who are serving-or who have previously served—in the Armed Forces of the United States could receive “parole-in-place” on a categorical basis. Notably, the parole statute, the regulations, and the legislative history do not seem to contemplate parole for: (1) aliens who are already in the United States illegally, (2) an entire category of people, or (3) an indefinite period of time. Extending parole in place in this manner is a re-write of the law.
Suspending Criminal Laws

Amending Statutory Mandatory Minimums by Executive Decree.
On August 12, 2013, Attorney General Holder announced in a speech to the American Bar Association changes in federal mandatory minimum sentencing policy regarding low-level, non-violent drug offenders. Although Members of Congress may agree with many of the policy issues Attorney General Holder outlined in his announcement, reform regarding mandatory minimums is constitutionally required to come from Congress. But rather than work with Congress to address issues with mandatory minimums, the Obama administration re-wrote federal law by executive fiat.
Recent Judicial Decisions

Nuclear Waste Disposal:
The original Imperial Presidency report noted how the Administration was refusing to implement the Nuclear Waste Policy Act. On August 13, 2013, a Federal Court of Appeals found that the Obama Administration was indeed not in compliance with the Nuclear Waste Policy Act and issued a writ of mandamus compelling compliance.
Net Neutrality Rules:
The original Imperial Presidency report noted how the Administration’s appointees to the FCC were attempting to illegally impose net neutrality rules on the internet. In January 2014, the US Court of Appeals for the DC Circuit decided a case brought by Verizon against the FCC, appealing the FCC’s second attempt at imposing net neutrality. Again, the court found that the FCC lacked the authority to apply common carrier rules — those designed for monopoly era telephone networks — on the Internet.
War on Coal:
The original Imperial Presidency report detailed a variety of extra-legal steps the Administration was taking as part of its “war on coal.” Since then, the EPA took the unprecedented step of unilaterally and retroactively revoking a Clean Water Act (CWA) Section 404 dredge or fill permit that had already been issued by the Corps for a coal mine (the Spruce Mine) in West Virginia, even though EPA was involved throughout the permit application process and the permittee had complied with their permit ever since it was issued three years earlier. The U.S. District Court for the District of Columbia, recently overruled EPA’s permit revocation action, ruling that EPA did not have the authority under the CWA to revoke a permit that the Corps had already issued. Not content with the Federal Court’s ruling that placed limitations on EPA’s authority, the Obama Administration has appealed the court’s ruling in hopes of validating their quest for expanded regulatory authority under the CWA. If EPA is allowed to prevail in this action, projects all around the country will be in danger of having their permits revoked any time EPA so chooses.
Cantor’s Obamacare list, borrowed from The Washington Post (of all places), is too long to list. You can see that, as well as his ongoing report on many of Obama’s other Constitutional infringements, here.

In October of 2012, my office released a 33-page report documenting the rise of the “Imperial Presidency.” The report cited over 40 separate examples of the break-down in the rule of law under the Obama Administration. As the report noted at the time, the break-down in the rule of law not only was of significant constitutional concern, but also negatively impacted economic growth and individual prosperity.

Unfortunately, since the release of that first report, the pattern of overreach by the Executive Branch has only continued. The President has even gone so far as to embrace a “pen and phone” approach to his office which suggests he need not follow the established constitutional and legal framework under which our government is supposed to operate. Nowhere is this more apparent than when the Administration decides that as a matter of policy they will not enforce the laws of our nation.

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The following addendum to the original “Imperial Presidency” report details other recent pronouncements from the Administration regarding their refusal to enforce the law and in addition provides examples of where the courts have been stepping in to uphold the rule of law.

Since becoming the majority party in the House of Representatives in 2011, House Republicans have considered numerous pieces of legislation dealing with specific situations where the Administration is ignoring the law, attempting to rewrite the law, or refusing to enforce the law. In some cases the Congressional spotlight and the threat of legislative action has caused the Administration to back down. For example, the National Labor Relations Board ultimately dropped its push to tell a private company where it could locate its facilities. And just this week, as the House was prepared to vote on a bill to overturn a proposed Administration rule that would dramatically alter the way the prescription drug program under Medicare operates in a way that would hurt seniors, the Administration announced that they would no longer pursue its proposed rule.But the sustained pattern of willfully refusing to enforce the law as written, has demonstrated that a more comprehensive approach is necessary. This week the House will consider two bills reported by the Judiciary Committee to restore the proper balance of power and protect our constitutional system. The first bill ensures that Congress and the American people are notified whenever any Administration official implements a formal or informal policy to not enforce a provision of law. The second establishes an expedited process for either the House or Senate to go to court to compel the Administration to enforce the law as written. More specifically:

Faithful Execution of the Law Act:
The Faithful Execution of the Law Act (H.R. 3973) strengthens current law and promotes transparency and honesty in the federal government by requiring all federal officials who establish or implement a formal or informal policy to refrain from enforcing a federal law to report to Congress on the reason for the non-enforcement.

Become a Citizen Cosponsor of the Faithful Execution of the Law Act:

The ENFORCE the Law Act:
The Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law (ENFORCE the Law) Act (H.R. 4138) will help rein in the growing problem of executive overreach and restore balance to the separation of powers enshrined in our Constitution. Specifically, the ENFORCE the Law Act puts a procedure in place to permit the House, or the Senate, to authorize a lawsuit against the Executive Branch for failure to faithfully execute the laws. The legislation also provides for expedited consideration of any such lawsuit, first through a three-judge panel at the federal district court level and then by providing for direct appeal to the United States Supreme Court.

Become a Citizen Cosponsor of the ENFORCE the Law Act:

This expedited review is crucial in order to ensure that when a lawsuit is brought against the Administration to enforce our laws, the courts not only grant Congress standing, but also hear the case on an expedited timeline to prevent the President from stalling the litigation until his term is up. In addition, the bill statutorily mandates that the courts set aside their own court-created standing rules and thereby prevents courts from using procedural excuses to avoid making decisions in these important separation of powers cases.

Eric Cantor
Majority Leader

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