Attorney General Eric Holder didn’t have a ready answer when questioned by Senator Mike Lee (R-Utah) Wednesday on the Constitutional basis for the President’s use of executive orders. That’s partly because he’s not up to date on all the lawyering that’s been done to justify modern Presidents’ ongoing reliance on executive orders, and partly because the authorization for executive orders to modify standing legislation is nowhere to be found in the Constitution.
Lee initiated this exchange Wednesday during a hearing before the Senate Judiciary Committee:
LEE: I heard you mention a few minutes ago, in response to some of the questions asked by Senator Grassley, that it’s the President’s preference to work with Congress; that, wherever possible, he’d like to get Congress to agree with him to pass legislation that he would like. But, of course, the other side of that coin is something that the President referred to repeatedly last night in his State of the Union address, which is that, if he can’t get Congress to act, he’ll go it alone — if Congress won’t act the way he wants Congress to act, then he’ll issue an executive order anytime he gets the chance.
This brings to mind a concern that I’ve had as to whether or not sufficient analysis is being undertaken when these executive orders are issued.
As you know, the Supreme Court has… tended to separate out executive orders into three categories, you know: In category one, you have a situation where Congress [sic; Lee surely meant to say “the President”] acts pursuant to authorization by Congress, and that’s where his authority to act with an executive order is at its strongest.
Category two is where you have the President acting in the absence of either a Congressional authorization or a Congressional prohibition. Justice [Robert] Jackson [in Youngstown Sheet & Tube Co. v. Sawyer (1952)] described this as sort of a “twilight zone” where it’s a little unclear; it’s a little murky.
Category three is where you have the President taking measures that are incompatible with Congressional command.
And so I would ask, number one — is this analysis undertaken each time the President issues an executive order? And, number two, was that kind of analysis undertaken when the President, for example, announced on July 2nd of 2013 that he would not be enforcing the employer mandate of the Affordable Care Act throughout the duration of 2014? Even though, by law, the employer mandate was set to take effect as of January 1st, 2014.
HOLDER: … Those kinds of activities are done by the President after consultation with the Justice Department, and an analysis is done to make sure that the President is acting in an appropriate; in a Constitutional way. And those three categories that you talked about — that we all studied in law school — from Justice Jackson, are among the things that, obviously, are a part of the analysis: where the President’s authority is greatest, the “twilight zone,” and then where the President’s authority is weakest.
LEE: So, in which of those three categories would you put the President’s decision to delay the enforcement of the employer mandate? Is that category one, two or three?
HOLDER: I’ll be honest with you, I have not seen — I don’t remember looking at or having seen the analysis in some time, so I’m not sure where along the spectrum that would come —
LEE: How about the executive order that he proposed last night, with regard to minimum wage; would that be category one, category two or category three?
HOLDER: Again, without having delved into this with any great degree —
LEE: But you’re the Attorney General. I assume he consulted you?
HOLDER: Well, there have been consultations done with the Justice Department. From my perspective, I think that would put us in category one, given the Congressional involvement in the matter. The ability of the President to regulate things that involve the Executive Branch and how contracting is done seems to me that the President is probably at the height of his Constitutional power in that regard.
Lee knew Holder was trapped, because the Senator’s line of questioning was bound either to paint Holder as ignorant of precedent law (if Holder, in fact, had the nerve to call Obama’s flagrantly unilateral delay of the employer mandate a “category one” executive order) or as an outright liar (which Holder veered close to admitting, when he first declared that the President had worked closely with the DoJ before issuing recent executive orders — but then confessed it had been “some time” since he had reviewed the analysis established by the Supreme Court in Youngstown).
The Constitution says nothing about the President’s power to amend Congressional law or to act unilaterally to create legislation that Congress has declined to take up. Article II, Section 1, Clause 1 simply states, “The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows…”
That’s followed up later in Article II (Section 3, Clause 5): “…he [the President] shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.”
Supreme Court Justice Robert Jackson’s concurring opinion in the 1952 Youngstown case, in which he broke down the spirit of a President’s executive actions into the three categories Lee referenced, set a precedent for judicial interpretation of whether future Presidents’ executive actions could be litigated according to their adherence to, or divergence from, the intent of Congress in passing — or declining to pass — legislation.