Note that Holder says, a couple of times that it is Obama's "desire" to work with Congress, which means that if Congress, a body of 535 persons, desires what Obama desires, Congress has the ability to pass law to make it happen. This President want to work with Congress only when Congress does his bidding. We've seen it over and over the past five years.
The portion below begins at about 3:25 in.
LEE: This brings to mind, 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 sufficient analysis is being undertaken when these Executive Orders are issued. As you know, the Supreme Court has, since Youngstown Sheet and Tube v. Sawyer, and Justice Jackson's concurrence, and certainly since Dames and Moore v. Regan when Jackson concurrence was adopted by the majority of the Court, has tended to separate out Executive Orders out into three categories.
In Category 1 you have a situation where Congress acts pursuant to authorization by Congress. That's where his authority to act with an Executive Order is at its strongest.
Category 2 is where you have the President acting in the absence of either Congressional authorization or a Congressional prohibition. Justice Jackson described this as sort of a twilight zone where it's a little unclear, a little murky.
Category 3 is where you have the President taking measures that are incompatible with Congressional command.
I would ask, No. 1, is this analysis undertaken each time the President issues an Executive Order, and No. 2, was that kind of analysis undertaken when the President, for example, announced on July 2, 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 1, 2014?
HOLDER: Before the President exercises the Executive authority that he discussed last evening, and again I want to preface that with, I think the pretty clear indication from the President was that he wants to work with Congress on behalf of the American people. In the absence of that kind of activity, as he has done with regard to raising the minimum wage, he uses Executive authority to, well, will use Executive authority to raise the minimum wage for those who do business with the Federal Government, those kinds of activities by the President are done after consultation with the Justice Department, and an analysis is done to make sure that the President is acting in an appropriate, constitutional way, and those three Categories that you talk about, that we all studied in law school from Justice Jackson are among the things that are obviously a part of the analysis. Where the President's authority is greatest, the twilight zone and where the President's authority is weakest.
LEE: So which of those three categories would you put the President's decision to delay the enforcement, to delay the Employer's mandate. Is that Category 1, 2 or 3?HOLDER: I'll be honest with you, I've not seen...I don't remember looking at, or having seen the analysis in sometime, 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 1, Category 2 or Category 3?
HOLDER: Well, again, from...without having delved into this to any great degree, that would...LEE: But you are 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 1 given the Congressional involvement in the matter, the ability of the President to regulate things that involved the Executive Branch and how contracting is done. It seems to me that the President is probably at the height of his presidential power, in that regard...
LEE: So you're saying there is a federal statute that authorizes him to issue the Executive Order regarding the minimum wage?HOLDER: I think there's a constitutional basis for it, and given what the President's responsibility is, in running the Executive Branch, I think there is inherent an power there for him to act in the way he has.
LEE: And in regard to the Employer Mandate?
HOLDER: Again, as I've said, I've not had a chance to look at it for some time to know exactly what the analysis was there, so I'm not sure I'll be able to put it in a, what Category. Again, I would think, given that we are talking about a statute passed by Congress that delegates, that devolves to the Executive Branch, certain authorities, I would that it would probably be Category there as well, but again, I have not looked at the analysis in some time.
LEE: Okay, I appreciate your candor on that and I see my time's expired, but as I conclude, I'd just like to point out that this is very, very important and it's one of the reasons why, as one of my colleagues suggested earlier, it could be very helpful for you to release legal analysis, produced by the office of legal counsel or whoever is advising the President on these issues. It's imperative in our Constitutional system that we not allow too much authority to be accumulated in one person, and it's one of the reasons why we have a Constitution, is to protect us against the excessive assimulation of power. I think the President certainly owes it to the American people, and you owe it to the President as his Attorney General, to make sure that when he does act by Executive Order that he do so clearly and state the basis of his authority, so that the American people can be aware of what's happening and on what basis he's claiming that authority. I look forward to hearing your explanation. Perhaps you can submit something to us in writing after this hearing about his basis for making some of these decisions, particularly with regard to the Employer Mandate. Thank you.
HOLDER: Let me just say that I have great respect for your legal, analytical skills. You are clearly your father's son, but I also want to assure you and the American people that the President will not act in a way that is inconsistent with the way other Presidents have used their Executive Order. He has made far less use of use of his Executive power at this point in his administration than his predecessors have, and he will only do so as I have indicated previously, where he is unable to work with Congress to do things together. That is the desire of the President to work with Congress to deal with the issues that confront [inaudible].
LEE: General Holder, I respectfully, but forcefully, disagree with the assertion, if this is what you are saying, that because the number of Executive Orders issued by this President might be comparable to the number of Executive Orders issued by previous Presidents, that that means that he hasn't made more use of it than other Presidents have. When you look at the quality, not just the quantity, but the quality, the nature of the Executive Order's that he has issued, he has usurped an extraordinary amount of authority within the Executive Branch. This is not precedent, and I point to the unilateral delay, lawless delay, in my opinion, of the Employer Mandate as an example of this, so at a minimum, I think he owes us an explanation as to what his legal analysis was, particularly given the fact that it's difficult to imagine who's got standing to challenge this, and it's difficult to imagine who, if acquiring standing to challenge this, could do so in a timely enough manner so as to avoid a mootness problem in the case, so it's all the more reason why it's important in this case. Thank you very much.
HOLDER: We have to separate then, with regard to the notion that there's a usurpation or that the President has acted in a lawless way, I think is totally inconsistent with what the President has done and what his desires are, to do.