Members of Congress and constitutional law experts testified before the House Judiciary Committee on Wednesday, warning that the legislative branch is in danger of ceding its power in the face of an “imperial presidency.”
The hearing, “Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws,” focused on the multiple areas President Barack Obama has bypassed Congress, ranging from healthcare and immigration to marriage and welfare rules.
Jonathan Turley, Shapiro Professor of Public Interest Law at George Washington University, testified that the expansion of executive power is happening so fast that America is at a “constitutional tipping point.”
“My view [is] that the president, has in fact, exceeded his authority in a way that is creating a destabilizing influence in a three branch system,” he said. “I want to emphasize, of course, this problem didn’t begin with President Obama, I was critical of his predecessor President Bush as well, but the rate at which executive power has been concentrated in our system is accelerating. And frankly, I am very alarmed by the implications of that aggregation of power.”
“What also alarms me, however, is that the two other branches appear not just simply passive, but inert in the face of this concentration of authority,” Turley said.
While Turley agrees with many of Obama’s policy positions, he steadfastly opposes the method he goes about enforcing them.
“The fact that I happen to think the president is right on many of these policies does not alter the fact that I believe the means he is doing [it] is wrong, and that this can be a dangerous change in our system,” he said. “And our system is changing in a very fundamental way. And it’s changing without a whimper of regret or opposition.”
Elizabeth Price Foley, a law professor at Florida International University College of Law, agreed, warning that Congress is in danger of becoming “superfluous.”
“Situations like this, these benevolent suspensions as they get more and more frequent and more and more aggressive, they’re eroding our citizens’ respect for the rule of law,” she said. “We are a country of law and not men. It’s going to render Congress superfluous.”
Foley said Congress is not able to tackle meaningful legislation out of fear that Obama would “simply benevolently suspend portions of the law he doesn’t like.”
“If you want to stay relevant as an institution, I would suggest that you not stand idly by and let the president take your power away,” she said.
Panelists and members of Congress dismissed the idea of impeachment, and instead focused on lawsuits to challenge the constitutionality of the president’s unilateral moves.
Four House members testified on the first panel during the hearing to highlight legislation they have sponsored to thwart the administration’s executive overreach.
Impeachment would “surely be extremely divisive within the Congress and the nation generally, and would divert the attention of Congress from other important issues of the day,” said Rep. Jim Gerlach (R., Pa.).
Gerlach, who testified before the committee, introduced H.R. 3857, the “Enforce the Take Care Clause Act,” which would expedite the review and injunction process for federal courts to challenge executive actions. Such a challenge would have to pass a supermajority in both chambers in order to be fast-tracked.
“Given the growing number of examples where this President has clearly failed to faithfully execute all laws, I believe it is time for Congress to put in place a procedure for a fast-track, independent review of those executive actions,” he said.
Gerlach said he proposed the bill due to Obama’s repeated alterations to his signature law, the Affordable Care Act.
“The ACA has been revised, altered and effectively rewritten by the president and his administration 23 times since July,” he said.
“When we have these constant changes at the president’s whim think about what that does to businesses’ planning capabilities and hiring capabilities and their expansion capabilities,” Rep. Tom Rice (R., S.C.) said. “We shouldn’t wonder why our economy is struggling.”
Rice has proposed the “Stop This Overreaching Presidency (STOP) Resolution” as a remedy. The resolution, which has 114 cosponsors, would direct the House to file lawsuits against four of the president’s unilateral actions, including the employer mandate delay in Obamacare and deferred action program for illegal immigrants.
Turley said Congress must take action to regain their power as the “thumping heart of our system.”
“The fact is, we’re stuck with each other,” Turley said. “Whether we like it or not in a system of shared powers. For better or worse we may deadlock, we maybe despise each other. The framers foresaw such periods, they lived in such a period.”
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