Right-Wing Media Build Faulty Case That Obama Is “Lawless”

Right-wing media have attempted to manufacture the claim that President Obama is abusing executive power by delaying implementation of the health care law's employer mandate and directing federal prosecutors to avoid maximum drug sentences in some cases, despite the legality of both practices.

Right-Wing Media Claim Health Care Delay Is Unconstitutional

Betsy McCaughey: Obama Is “Chipping Away At The Constitution.” In an Investor's Business Daily op-ed, former New York Lieutenant Governor Betsy McCaughey claimed that President Obama's move to delay the employer mandate provision of the Affordable Care Act “reveals how disconnected this president is from this nation's history and constitutional principles”:

With the exception of Richard Nixon, these presidents -- from Eisenhower to Reagan to Clinton and both Bushes -- have not tried to exempt themselves from the Constitution.

Article II, Sec. 3 of the Constitution commands the president to faithfully execute the law. Courts have consistently ruled that presidents have little discretion about it. Obama can't pick and choose what parts of the Affordable Care Act he enforces and when. [Investor's Business Daily, 8/13/13]

Wash. Post's George Will: “Obama's Unconstitutional Steps Worse Than Nixon's.” In an August 14 Washington Post column, George Will claimed that Obama does not have authority to delay the employer mandate, calling his “unconstitutional steps worse than Nixon's”:

Serving as props in the scripted charade of White House news conferences, journalists did not ask the pertinent question: "Wheredoes the Constitution confer upon presidents the 'executive authority' to ignore the separation of powers by revising laws?" The question could have elicited an Obama rarity: brevity. Because there is no such authority.


Neither does the Constitution confer on presidents the power to rewrite laws if they decide the change is a “tweak” not involving the law's “essence.” Anyway, the employer mandate is essential to the ACA. [The Washington Post, 8/14/13]

Krauthammer: “Of Course It's Unconstitutional” To Delay The Mandate. On the July 9 edition of Fox News' The O'Reilly Factor, host Bill O'Reilly asked Fox News contributor Charles Krauthammer, “Do you think it's unconstitutional for the president to take an existing law that he signed and say we're not going to force part of that law, the employer mandate? Is that unconstitutional?” Krauthammer replied, “Of course it's unconstitutional. The Constitution says the executive has to faithfully execute the laws and here it is faithfully ignoring a law it doesn't like in the same way it wantonly passed the DREAM Act unilaterally, an act that the Congress had rejected. It is absolutely lawless in the things it does. This is only the latest example.” [Fox News, The O'Reilly Factor, 7/9/13 via National Review Online]

Experts Argue That Obama Administration Has Authority To Implement Delay

Constitutional Scholar Simon Lazarus: Delay Is “Well Within The Executive Branch's Lawful Discretion.” In a post in The Atlantic, Constitutional Accountability Center Senior Counsel Simon Lazarus wrote that the delay is “a sensible adjustment to phase-in enforcement, not a refusal to enforce” and “well within the Executive Branch's lawful discretion”:

The relevant text requires that the President “take care that the laws be faithfully executed.” Scholars on both left and right concur that this broadly-worded phrasing indicates that the President is to exercise judgment, and handle his enforcement duties with fidelity to all laws, including, indeed, the Constitution. As McConnell himself notes, both Republican and Democratic Justice Departments have consistently opined that the clause authorizes a president even to decline enforcement of a statute altogether, if in good faith he determines it to be in violation of the Constitution. But, McConnell contends, a president cannot “refuse to enforce a statute he opposes for policy reasons.” While surely correct, that contention is beside the point.

The Administration has not postponed the employer mandate out of policy opposition to the ACA, nor to the specific provision itself. Thus, it's misleading to characterize the action as a “refusal to enforce.” Rather, the President has authorized a minor temporary course correction regarding individual ACA provisions, necessary in his Administration's judgment to faithfully execute the overall statute, other related laws, and the purposes of the ACA's framers. As a legal as well as a practical matter, that's well within his job description. [The Atlantic, 7/17/13]

SCOTUSblog's Denniston: Supreme Court Gave Agencies Discretion Regarding Implementation. In a post on Constitution Daily, legal expert Lyle Denniston pointed out that “Article II does not say that a law shall be carried out at all cost, so every President operates on the assumption that federal agencies can be given some leeway in how they do it.” Denniston pointed to a recent Supreme Court case as relevant, writing that the court “just last month went a long way toward requiring federal courts to trust the government agencies that execute the laws to interpret for themselves just what authority Congress has given them in their areas of official activity”:

Given the complexity of modern government operations, very few of the laws that Congress passes are completely self-executing; most if not all of them require regulations to put them into actual effect. And writing regulations is the business of the federal agencies.  An array of government agencies have been working for more than three years, for example, to write the rules for the new Affordable Care Act - the vast new law regulating the entire health care financing system.

The Supreme Court just last month went a long way toward requiring federal courts to trust the government agencies that execute the laws to interpret for themselves just what authority Congress has given them in their areas of official activity.  What an agency decides is the range of its power, that ruling said, should be given considerable deference by the courts.

Very telling in that decision in the case of City of Arlington, Texas, v. Federal Communications Commission is that it was written by Justice Antonin Scalia, the Court's strongest believer that the courts should be very strict in following the letter of the laws that Congress passes.  The actual text, not what someone said about it, is what controls, he has said, over and over. Scalia, a former professor of administrative law, seems quite tolerant of agency discretion. [Constitution Daily, 7/10/13]

Fox Claims Drug Sentencing Guideline Change “Unlawful”

Krauthammer: Obama Administration Decision To Avoid Mandatory Minimum Sentence Is “Unlawful.” On Fox News' Special Report, Charles Krauthammer reacted to Attorney General Eric Holder's decision to direct federal prosecutors to avoid triggering mandatory minimum sentences for certain drug-related charges by claiming the change is “unlawful”:

KRAUTHAMMER: What he's done now, what he's proposed with these drug laws is worse than just suspending the parts of the law and instructing prosecutors not to prosecute. He also is telling prosecutors who already have prosecutions in place that they can withhold evidence so that the defendant won't get a maximum or a mandatory penalty. I mean, that is illegal. That's unlawful, that's -- I mean, that is simply shocking that that would be the instruction from an attorney general.

I think as one former attorney general, deputy attorney general said, if you did that in a private case, you would be accused of a felony if you were prosecuting it and you were withholding evidence. And it is epidemic. It isn't only in this, it is in the Obamacare law, the administration's own law, the parts of which it is suspending. It is in the DREAM Act, which is a unilateral suspension. [Fox News, Special Report with Bret Baier, 8/12/13 via Media Matters]

Fox & Friends Lists “Overruling Congress On Drug War Sentences” As Evidence Of Abuse Of Power. On the August 16 edition of Fox News' Fox & Friends, guest host Shannon Bream claimed that “there are questions about abuse of power” and that “we've seen this administration, not just the president but others in the administration, decide when they're going to” uphold Article II of the constitution “and when they aren't.” Co-host Brian Kilmeade asked if he's “breaching the Constitution,” listing, among other things, “overruling Congress on drug war sentences.” [Fox News, Fox & Friends, 8/16/13]

Holder Advised Prosecutors To Exercise Authority They Currently Possess

NY Times: Prosecutors Have Broad Discretion On Charges. In a 1988 article on the decision to not bring charges against Reagan Attorney General Edwin Meese over his involvement in the Iran-Contra Affair, The New York Times noted that prosecutors have “almost unfettered authority to decide” how to prosecute cases, including “what evidence to present”:

The decision of an independent prosecutor this week not to seek criminal charges against Attorney General Edwin Meese 3d has focused new attention on the broad and controversial power granted to American prosecutors in deciding who shall be brought to justice.

Far more than in any other democracy, American prosecutors have almost unfettered authority to decide whom to charge, what crimes to identify, what penalties to seek, what bail to urge, what witnesses to call, what evidence to present, what persons to give immunity from prosecution, what plea bargains to make and what sentences to negotiate.


The discretion afforded American prosecutors is defended on the ground that it provides for case-by-case flexibility and ultimately more leniency for deserving defendants. But critics say it has been abused with considerations of race, class and political affiliation. Draft protesters, users of small amounts of marijuana and minor traffic offenders have challenged verdicts and sentences by showing that others were not prosecuted for similar crimes, and prosecutorial bias has been charged in jury selection and death penalty cases.

The subject has grown so controversial in recent years that it has been the focus of more than 200 law review articles and 280 Federal court cases since 1985. That does not count the thousands of scholarly law articles, speeches and the cases in state and local courts.

''It's a fundamental topic in the criminal justice system,'' said Philip B. Heymann, a professor of law at Harvard who was the Assistant United States Attorney General in charge of the criminal division from 1978 to 1981.

Mr. Heymann, who heads the Center for Criminal Justice at Harvard, said prosecutors have the authority not to bring charges even when they think they can prove a crime has been committed. He noted that such decisions are necessary in part because there is so much crime in the United States; prosecutors could not possibly process all of it.

The Federal courts have consistently upheld a prosecutor's powers. ''The discretion allowed prosecutors,'' the Supreme Court said last year in a trademark infringement case, Young v. United States, ''is so broad that decisions not to prosecute are ordinarily unreviewable.'' Only in cases of flagrant abuse, including criminal activity by a prosecutor, may a court overrule a prosecutor's decision, the Court has said. [The New York Times7/22/88]

Wash. Post: Decision To Change How Criminal Complaints Are Made Is A Change He Can Make On His Own; Other Initiatives Require Legislative Action. The Washington Post reported that Holder's memo to prosecutors represents a change to drug policy he can do on his own authority:

The attorney general can make some changes to drug policy on his own. He is giving new instructions to federal prosecutors on how they should write their criminal complaints when charging low-level drug offenders, to avoid triggering the mandatory minimum sentences. Under certain statutes, inflexible sentences for drug crimes are mandated regardless of the facts or conduct in the case, reducing the discretion of prosecutors, judges and juries.

Some of Holder's other initiatives will require legislative change. Holder is urging passage of legislation with bipartisan support that is aimed at giving federal judges more discretion in applying mandatory minimum sentences to certain drug offenses. [The Washington Post8/12/13]

Conservative Policy Analysts: Holder Has Authority For His Directive. On National Review Online's The Corner blog, Vikrant P. Reddy and Marc A. Levin from the Texas Public Policy Foundation's Right On Crime initiative explained that the attorney general has the authority to suggest prosecutors use their discretion to reduce sentences, but recommended it be followed up with legislation:

The attorney general has exercised his authority to provide guidance to federal prosecutors to exercise discretion in applying mandatory minimums in drug cases to ensure that the longest sentences are reserved for kingpins. Nonetheless, this administrative action comes five years into this presidency and could be undone at the whim of this or any future attorney general. Therefore, statutory reforms are still needed to ensure that the law provides a reasonable range of punishment for low-level federal drug offenses such that there is enough prosecutorial and judicial flexibility to craft sentences that fit the crime. [National Review Online, The Corner, 8/13/13]