Obama, His Attorney General nominee and the Congress

Jonathan Turley, a legal scholar, constitutionalist and liberal in the old fashioned sense, considers Obama the most anti-Constitution President in recent memory. Excerpts from his prepared testimony on Obama's nominee for Attorney General, Loretta Lynch, are provided below.

Note that at the conclusion of his prepared testimony, Mr. Turley argues that in considering a nominee, the Senate should solicit the nominee's views on the department's past behavior and seek firm commitments to reform what needs to be reformed. Based on what I have read of the confirmation hearings, the present nominee's answers have been less than forthcoming and her commitments have been, at best, evasive. If she does not satisfy the Senate that she will be diligent and effective in changing the path taken by the Holder Justice Department, she should not be confirmed.

That Ms. Lynch would be our first Black female attorney general should be a ground for neither confirmation nor non-confirmation. Unfortunately, I suspect that it will be seen as a compelling basis for confirmation, on both sides of the aisle.

Mr. Turley's blog of January 29th provides a link to his prepared testimony before the Senate, which is considering Obama's nomination of Loretta Lynch as the replacement for Eric Holder as Attorney General of the United States. Mr. Turley approves of some of Obama's policies, but deplores the unconstitutional means He has chosen to implement them. Mr. Turley also considers General Holder to be a terrible attorney general, who has done more than any other attorney general in recent memory to elevate the power of the Executive over both the Legislative and Judicial branches of Government as established by the Constitution. Here are a few excerpts. All bold print emphases are mine, and I have omitted the lengthy footnotes. All twenty-six pages, single spaced and in PDF format are well worth reading.

As my writings indicate, I have been concerned about the erosion of the lines of separation in our system (and specifically the erosion of legislative authority) for many years. However, this concern has grown to alarm in the last few years under President Obama, someone whom I voted for and someone with whom I agree on many policy issues. We are watching a fundamental change in our constitutional system in the rise of a dominant Chief Executive, a type “uber presidency” that has evaded the limitations imposed by the Framers in our system. It certainly did not begin with President Obama, and I was previously critical of the action of President George W. Bush with regards to the loss of legislative authority. However, it has reached a dangerous constitutional tipping point under the current Administration. That aggrandizement of authority could not have occurred without the active support and catalytic role of the United States Justice Department.

The Justice Department, as an institution, has poorly served not just institutional but constitutional interests in the last decade through its consistent effort to expand executive authority. These policies often appear inherently hostile to fundamental principles contained within our constitutional systems from the separation of powers to federalism, privacy, due process, press freedom, free speech, and international law.

The implications of this trend are obviously chilling. However, the most serious threat is found in the controversies over the inherent power and limitations applicable to the presidency. Some of these conflicts are the manifestation of policies that can be undone, but the more fundamental attacks on separation principles threaten to change the very system under which our rights (and our future) are guaranteed. In my view, Attorney General Holder often appeared untethered by the constitutional moorings in the Vesting Clauses. As a result, he steered the Justice Department far outside of the navigational beacons in Article II. The question is whether Ms. Lynch will (or can) tack back to calmer constitutional waters to the benefit of not only the integrity of our Constitution but the Department itself.

Our government requires consent and compromise to function. It goes without saying that when we are politically divided as a nation, less tends to get done. However, such division is no license to “go it alone” as the President has suggested. You have only two choices in our system when facing political adversaries: you can either seek to convince them or to replace them. This is obviously frustrating for presidents (and their supporters) who want to see real changes and to transcend gridlock. However, there is nothing noble in circumventing the Constitution. The claim of any one person that they can “get the job done” unilaterally is the very Siren’s Call that our Framers warned us to resist. It is certainly true that the Framers expected much from us, but no more than they demanded from themselves. Regrettably, we have failed that test in recent years as evidenced by the growing imbalance in our tripartite system of government.

The position of the Obama Administration in violating the law showed a distinct lack of good faith or even a credible denial. While some argued that President Obama was now claiming that the law was never valid due to his inherent power as Commander in Chief, the defense of the swap came not from the Justice Department but from the National Security Council spokesperson, Caitlin Hayden. She explained that “[b]ecause such interference would significantly alter the balance between Congress and the President, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these circumstances.” The argument was rather bizarre on its face. Congress allowed for no waivers under the notice requirement—unlike other provisions under the 2014 National Defense Authorization Act. As both Democratic and Republican leaders indicated in the aftermath of the swap, such a reading of the law is facially absurd to the point of being insulting. Notably, even if the President were acting under his inherent authority, Section 1035 does not, itself, prevent the transfer of prisoners but rather requires disclosure of such transfers. Likewise, the very touchstone of congressional authority is the power of the purse. Section 8111 exercised that authority in barring the use of funds for a purpose deemed by Congress inimical to the national interest. The President’s claim that he could simply disregard the law and then spend money expressly prohibited by federal law captures the new reality of our constitutional order. Admittedly, there are arguments that these laws did intrude upon Executive Authority and some academics consider the rise of a dominant president as not just an inevitable but also a positive development. However, President Obama was effectively claiming both the right to ignore a disclosure provision as well as an appropriations limitation. Such a position could effectively negate a host of environmental, labor, and other laws by the same logic. The signature of a president or enactment of a law could no longer be viewed as an assurance that federal law would be recognized or enforced.

Many scholars have described with approval the emergence of the “Age of Regulation” in the system of federal agencies. As I have previously written, these agencies now exercise sweeping discretion and authority in the regulation of every aspect of American life. The sheer size of these agencies puts the vast majority of their activities under self-regulation rather than direct congressional oversight. The degree of the range of inherent authority now claimed by agencies is evident in the well-known controversies over health care and immigration.

The rise of both a dominant president and the Fourth Branch has shifted the center of gravity of our system—much at a cost to legislative power. That is a particularly dangerous change because it is in Congress that the disparate factional disputes are ideally transformed into majoritarian compromises. The pressure to compromise is only present in the system if the legislative system remains the sole course for bringing substantial change to federal laws and programs. If there is an alternative in unilateral executive action, the legislative process becomes purely optional and discretionary. The real meaning of a president claiming discretion to negate or change federal law is the discretion to use or ignore the legislative process. No actor in the Madisonian system is given such discretion. All three branches are meant to be locked in a type of constitutional synchronous orbit – held stable by their countervailing gravitational pull. If one of those bodies shifts, the stability of the system is lost.

The Justice Department has played a key role in facilitating the erosion of legislative authority and the rise of executive power over the years. This is particularly the case under Attorney General Eric Holder, who can accurately be described as leaving one of the most damaging legacies in terms of separation principles. Indeed, General Holder has opposed some of the most fundamental exercises of congressional authority and litigated what are some of the most radical claims in federal court. While prior Attorneys General avoided court challenges in areas like executive powers and privilege, Holder has litigated with comparative abandon. In so doing, Holder has racked up serious losses in federal court in advancing extreme claims of unilateral executive power. The role of the Justice Department, however, goes beyond its direct confrontations with Congress. Many of the most controversial agency actions are filtered through the Justice Department in anticipation of litigation. The Justice Department works behind the scenes of many controversies in anticipating potential litigation and serving as a gatekeeper in the release of policies that could implicate constitutional powers.

The Department has advanced a comprehensive attack on separation principles that is unprecedented in its scope. While presidents such as Richard Nixon were known to advocate an “Imperial Presidency” model, no Administration has been nearly as active in the pursuit of such unilateral authority as the Obama Administration. The number of such disputes would be difficult to present in a testimonial format. However, they can be divided into two categories of separation violations: the obstruction of legislative authority and the usurpation of legislative authority.

The reason that Fast and Furious is particularly illustrative is for a couple of salient factors. First, no one (not even General Holder) defends the Fast and Furious operation, which proved as lethal as it was moronic. It is a prototypical example of a program that is legitimately a focus of congressional oversight authority. A federal agency was responsible for facilitating the acquisition of powerful weapons by criminal gangs, including weapons later used to kill United States Border Patrol Agent Brian Terry in December 2010. Congress has investigated not only the “gunwalking” operation, but also what it saw as concealment and obstruction, by the Administration, in its efforts to investigate the operation. Second, Congress had ample reason to expand its investigation after the Justice Department sent a letter on February 4, 2011 stating categorically that no gunwalking had taken place. It was not until December 2011 that Attorney General Holder informed Congress that it had been given false information and the letter was formally withdrawn. Congress responded by expanding the investigation into the false information given to it by the Executive Branch and the months of delay before Congress was informed of the misrepresentation of the facts underlying Fast and Furious. Finally, the position of the Justice Department on withholding documents has, in my view, been facially invalid and lacking in any credible good-faith interpretation of the executive privilege.

It is worth noting that the Administration in litigation over these claims presented the most extreme possible claims: not only refusing documents to investigatory committees in violation of legitimate legislative authority but contesting that a court can even rule on such a conflict in rejection of judicial authority.

The Administration in the case gave full voice to a vision of an imperial presidency where the Chief Executive was accountable to literally no one in such disputes. Indeed, in what is strikingly poor judgment in litigation management, the Justice Department has continued to make this extreme argument despite previously establishing precedent against itself in prior years.

After its admission of giving false information to Congress, the Justice Department’s position has been conflicted and, in my view, incoherent from a constitutional standpoint. After the House issued a subpoena for documents generated before and after February 4, 2011 only a partial production of documents was made by the Justice Department. Rather than recognizing the added burden of disclosure following its admitted false statement to Congress, the Department refused to produce clearly relevant documents. Then, in a June 20, 2012 letter, Deputy Attorney General, James M. Cole, informed Congress that the President had asserted executive privilege over documents dated after February 4, 2011. The stated rationale was that their disclosure would reveal the agency's deliberative processes. That position was clearly overbroad and unsupportable given the scope of documents withheld. Giving false information to Congress runs to the core of oversight duties. Whatever the definition of deliberation may be for a court, lying to Congress and then knowingly withholding unprivileged documents is not within any reasonable definition of that term. Indeed, the Justice Department seemed hopelessly or intentionally unclear as to the scope of deliberative privilege, particularly in the distinction between this exception under FOIA and the common law versus its meaning under constitutional law. Moreover, the invocation of executive privilege on the day of the hearing over the contempt of Congress deepened the confusion.

This confusion deepened further when the Department later admitted that virtually all of the documents withheld for months were unprivileged. On November 15, 2013, the Attorney General stated in court filings that he was withholding documents responsive to the Holder Subpoena that “do not . . . contain material that would be considered deliberative under common law or statutory standards.” Congress has a legitimate question of why the documents were withheld when they clearly were not privileged. The notion of a deliberative process privilege claim over non-deliberative documents was also made in the letter of General Holder to President Obama seeking a sweeping claim of executive privilege: “[b]ecause the documents at issue were generated in the course of the deliberative process concerning the Department’s responses to congressional and related media inquiries into Fast and Furious, the need to maintain their confidentiality is heightened. Compelled disclosure of such material, regardless of whether a given document contains deliberative content, would raise ‘significant separation of powers concerns.’

Blocking Contempt Prosecution. One of the most troubling aspects of the Fast and Furious investigation was not just the withholding of non-privileged material but the later refusal of the Justice Department to submit the alleged violation to a grand jury— despite a historic vote of the House of Representatives finding General Holder in contempt. The decision to block any prosecution was a violation of a long-standing agreement between the branches and represents a serious affront to the institutional authority of this body.

[T]he Administration (with the guidance of the Justice Department) first invokes overbroad executive privilege claims and then, when Congress seeks contempt prosecution, it cites its own overbroad executive privilege claims as the basis for refusing to give the matter to a grand jury. I have had criminal defense clients who would only envy such an ability to cite the basis for a criminal charge as the defense to a criminal charge. What is particularly breathtaking is that the Administration itself would confirm the non-privileged status of documents wrongly withheld from Congress but still insist that no grand jury could find such conduct the basis for a contempt charge. The current status of contempt powers in Congress is clearly untenable. To put it simply, the Justice Department has created a constructive immunity from congressional contempt through its expansive privilege claims. Indeed, it has taken roughly 200 years since Anderson v. Dunn, but the Justice Department has achieved in statutory criminal contempt what the Court feared with regard to inherent contempt: “the total annihilation of the power of the House of Representatives to guard itself from contempts, and leave . . . it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against it.”

Where the controversies over subpoenas and contempt involved the resistance of legislative authority to investigate the Executive Branch, other controversies involve the intrusion into legislative authority. Once again, the Justice Department has played a critical role in such expansion in areas ranging from online gambling to educational waivers to immigration deportations to health care decisions.

Once again, I support national health care and the goals of President Obama. There have been dozens of changes in deadlines and other provisions under the ACA. Again, I happen to agree with some of these changes but that does not change the fact that they are in direct conflict with legislative text. For example, Congress originally mandated that non-compliant policies could not be sold after October 1, 2014. That provision was unpopular with certain groups and the Obama Administration unilaterally ordered a two-year extension that allowed insurance companies to sell non-compliant, and thus unlawful, policies until October 2016. Another such change occurred with regard to the deadline for private employers with more than 50 full-time employees. This deadline was viewed by some as a critical element of the law and was arrived at after considerable debate. The Act expressly states that these provisions would become active on January 1, 2014. However, the Administration moved unilaterally to set its own deadline and thereby suspend annual penalties that would have brought in huge revenues in sanctions to the extent that businesses did not comply. It simply stated that the employer mandate and its reporting obligation “will not apply for 2014.” That change cost the government an estimated $10 billion in annual revenue. Then on February 10, 2014, the Administration again altered the statute by exempting employers with between fifty and ninety-nine full-time employees from all aspects of the employee coverage requirements until 2016.

In the resulting litigation, the Justice Department has advanced the same extreme interpretations of executive authority in defending the changes to the ACA. I would like to focus on one such controversy that is currently before the United States Supreme Court in King v. Burwell and before the D.C. Circuit en banc in Halbig v. Burwell. The focus of these cases is the interpretation of portion of the ACA governing state and federal exchanges. Congress established the authority of states to create their own exchanges under Section 1311. If states failed to do so, federal exchanges could be established under Section 1321 of the Act. However, in Section 1401, Congress established Section 36B of the Internal Revenue Code to authorize tax credits to help qualifying individuals purchase health insurance. In Section 1401 expressly links tax credits to qualifying insurance plans purchased “through an Exchange established by the State under 1311.” The language that the qualifying exchange is “established by the State” seems quite clear, but the Administration faced a serious threat to the viability of the Act when thirty-four states opted not to create exchanges. The Administration responded with an interpretation that mandates that any exchange—state or federal— would now be a basis for tax credits. In adopting this statutory construction, the Administration committed potentially billions in tax credits that were not approved by Congress. The size of this financial commitment without congressional approval also strikes at the essence of congressional control over appropriation and budgetary matters.

Confirmation hearings necessarily raise not just the credentials but also the policies to be pursued by a nominee, particularly when there is an impasse with Congress and the agency. Indeed, such hearings often force commitments for changes or policies to assure the Senate that a candidate is prepared to respect the basic conditions of interbranch relations and privileges under the Constitution. Recently, I read with some interest the statement of former Solicitor General Charles Fried who noted that he was expressly asked for assurances on his future actions in offices and felt duty bound to fulfill those promises. Confirmation hearings allow Senators to confirm new commitments and direction for departments. In so doing, past conflicts can be reduced or, in the very least, directly addressed between the branches.

Given the discretion afforded agencies (which are protected in the judicial system under such decisions as Chevron, Dominion, and Lane), the confirmation of agency and sub-agency heads is one of the most direct ways for Congress to try to influence or curtail decisions of the government. Congress’ direct hold over agency and sub-agency heads is limited to the critical decision of confirmation. While Congress may engage in informal consultation, it does not have a formal voice in the selection of a nominee and retention of a confirmed official. As Alexander Hamilton noted in the Federalist Papers, “[t]here will, of course, be no exertion of choice on the part of the Senate. . . . [T]hey can only ratify or reject the choice [the President] may have made.” Obviously, Senators are free to vote on any basis for the confirmation or the rejection of a nominee. They can vote for good reason, bad reason, or no reason at all. However, Senators in the past have demanded assurances on how a Department will perform its duties going forward as a condition for confirmation. For example, the past obstruction of oversight committees and failure to defend federal laws can be viewed as fundamental breaches in interbranch relations that demand resolution before confirmation.

More than any other department, the Justice Department has played a key role in facilitating the attack on congressional authority. The confirmation of an Attorney General necessarily raises the question of not just whether she will lead a federal department but what department she will lead. The Justice Department was once viewed as an apolitical institution that rose above political infighting and maintained a principled approach to the interpretation of the Constitution, particularly in deference to the separation of powers. In recent years, it has become both overly antagonistic and litigious with regard to the exercise of well-established legislative powers.

I’ve already seen and heard enough from Loretta to judge her completely unfit to be the Attorney General. Loretta will continue down the same lawless path that Eric has taken. Like Eric, Loretta will act as Barack’s enabler as he issues his executive orders and directives. Loretta should not be confirmed. However, I predict that Loretta will be confirmed with a large number of republican votes. In fact, many of the same republicans that voted for Eric will vote for her. Truly sad commentary on the state of our country.

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