At a Senate Judiciary Committee hearing, Eric Holder was asked by Senator Mike Lee to explain the Constitutional basis for executive orders, namely those such as the one issued by Obama to delay the employer mandate. Holder couldn’t think of any Constitutional basis and concluded that Obama is perhaps at the height of his Constitutional limit. The Washington Examiner reported:
“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,” Holder replied when Sen. Mike Lee, R-Utah, asked him to explain the nature of Obama’s constitutional power to delay the mandate…. “I’ve not had a chance to look at, you know, for some time, exactly what the analysis was there, so I’m not sure that I would be able to put it in what category,” Holder told Lee. He believes that Obama “is probably at the height of his constitutional power” in issuing an executive order to raise the minimum wage for workers who do business with the federal government, though, and concluded that the same is true for the employer mandate delay.
Saying that Obama is “probably at the height of his Constitutional power” is quite the understatement, considering that the very issuing of executive orders as we understand them today is unconstitutional. Holder doesn’t know any legal basis for Obama’s executive orders, because there is no Constitutional basis for them whatsoever.
The usual justification for them is found in Sections 1 and 3 of Article II of the Constitution, which outlines the executive branch’s purpose and functions. Section 1, Clause 1 reads:
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…
It then goes on to discuss how the President is to be elected. The “Take Care Clause” occurs in Section 3 of Article II:
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
This is kind of like the “Welfare Clause.” Nowhere in the Constitution does it give the federal government the authority to create welfare programs at the wasteful expense of its citizenry. But since the Constitution uses the word “welfare,” liberals use it to justify massive government programs.
Likewise, the Constitutional excerpts above do not provide justification in allowing the President to issue “executive orders.” In order for the President to “take Care that the Laws be faithfully executed,” it has to be a law in the first place. The President can’t make laws. Remember, that’s supposed to be Congress’s job. So, if things don’t go the President’s way, he has no choice but to wait on Congress, who may or may not allow him to do what he wants. It’s that way by design. If all the President has to do is issue executive orders when he doesn’t get his way, then what’s the point of having a Congress at all? I’m sure Obama asks the same question.