President Obama Called Out Again Over Separation of Powers

Today we are posting a great speech about the President’s latest effort to ignore the Constitution on the separation of powers.  Senator Orrin Hatch gave this speech one week ago and it is well worth reading.  

Mme. President, I rise today in defense of the U.S. Constitution, the separation of government powers it established, the rule of law it enshrined, and the legitimate prerogatives of the legislative branch—and this body in particular—under our constitutional system of government. 


          Last week, the Justice Department announced a plan to extend clemency consideration to a large new class of drug offenders.  Both the New York Times and the Washington Post estimate that the Department’s new guidelines will potentially apply to tens of thousands of cases, with clemency likely to be granted to perhaps thousands of current federal inmates.


          This surprise announcement by the Administration marks a worrying shift away from the longstanding norm requiring individualized determinations based on the particularly compelling circumstances of specific cases. Instead, the Justice Department has laid the groundwork for mass clemency based on a few widely-shared and broad criteria.


          Now of course, the Constitution gives the President the power to grant clemency in individual cases.  No one disputes this authority.  It has been exercised by presidents throughout our nation’s history.  And it is properly used on a limited, case-by-case basis to ameliorate specific instances of injustice experienced by particular individuals.


          By contrast, it is the rightful province of the legislative branch to establish broader sentencing policy through duly enacted federal statute.  There is sentencing law on the books and Congress periodically revisits and revises this sentencing policy.  But in our constitutional system, changing the law requires legislative action by Congress.


          In the face of this most basic constitutional requirement, the President has apparently instead decided to use—or, rather, abuse—the clemency power in an attempt to rewrite sentencing law unilaterally.  His invocation of clemency is merely a fig leaf to disguise a blatant effort to usurp legislative authority.


          The President’s clemency power in not a vehicle by which the executive branch may effectively revise or discard lawful statutes with which the President disagrees.  But that is precisely what President Obama and his Justice Department have promised to do. 


          The amount of time that entire classes of drug offenders spend in jail will no longer be based on uniform sentencing law passed by Congress and administered by the federal judiciary.  Instead, it will be determined by the President’s personal views of “justice,” by the Attorney General’s subjective notions of what he considers “fair,” and by some Justice Department bureaucrat’s sense of “proportionality.”


          Such a result turns our system of government on its head.  And it represents an abdication of the President’s core constitutional duty. Instead of faithfully executing the law, President Obama is simply seeking to enforce his personal ideological preferences.  It is precisely this sort of unchecked and unaccountable rule that our nation’s founders sought to prevent.


          Mme. President, the Obama Administration’s unilateral action on drug sentencing is especially troubling since Congress is actively considering a number of potential sentencing reforms. Indeed, an ideologically diverse, bipartisan group of Senators have demonstrated they are eager to legislate on this issue. Several sentencing reform bills have been drafted and introduced. Legislation has been considered and reported by the Judiciary Committee.


            Although a President should never expect to get every single idea he wants through the legislative process, bipartisan agreement here seems well within reach—especially if the Administration chose to focus on working with Congress to change the law rather than acting alone to undermine it. Yet even in an area where constructive action is achievable, the President has decided to go it alone, and in doing so he violates the most basic constitutional principles he once taught to his law school students.


          Mme. President, examples of such executive abuse have become all too common under this Administration, especially since President Obama announced his new “pen and phone” strategy of unilateral action specifically designed to bypass Congress and evade constitutional restraints.


          Just last week, the Associated Press reported that, under orders from the White House, the Department of Homeland Security is considering limiting deportations to only criminal aliens with felony convictions. Now, using the excuse of prosecutorial discretion—another executive tool limited to individual cases and particular circumstances—the Administration is seeking to frustrate duly enacted immigration law and instead implement its own broad immigration policies. 


          Whatever your thoughts on the sensitive questions of immigration policy, everyone can agree that such an act requires legislative action and should not be brought into effect through executive fiat.


          I am struck by how far this approach contrasts with the President’s own judgment as recently as last fall.  If the Administration continued broadening enforcement carve-outs, he said: “then essentially, I’ll be ignoring the law in a way that I think would be very difficult to defend legally.”[1]  Given the lawlessness of broad enforcement carve-outs, the President stated flatly, “that’s not an option.”[2]


          President Obama went on to acknowledge that he does not in fact have the authority to halt most deportations.  In his own words: “If in fact I could pass all these laws without Congress, I would do so. But we’re also a nation of laws, that’s part of our tradition. The easy way out is to . . . pretend that I can do something by violating our laws, but what I’m proposing is the harder path, which is to use our democratic process to achieve the same goal.”[3]


            Mme. President, I’d like to associate myself wholeheartedly with President Obama’s exhortation last fall that we are a nation of laws, and that substantive changes to the law must come about through the democratic process. As public servants, our common allegiance must first be to the rule of law under the Constitution, as it—more than anything else—is what “secure[s] the blessings of liberty to ourselves and our posterity.”


          I fear that President Obama’s frustration with an inability to win broad support for every aspect of his legislative agenda has caused him to ignore clear legal and constitutional obligations.  He now seems to view the longstanding rules, requirements, and traditions central to our system of republican self-government as irritants—mere suggestions that he is willing to bend past their breaking point in order to advance his controversial agenda.  


          Mme. President, concern about the potential for executive overreach has animated American political life from the very beginning.  Indeed, it predates our Republic, and shaped its founding. Centuries ago, absolutist monarchs like the Stuart dynasty in England, seizing on the powers of the medieval popes as a model, claimed a “royal prerogative” to suspend the application of the laws, and used this power to justify their oppressive rule.


          The Stuarts’ unchecked reign in England—the nation that pioneered the modern conception of the rule of law—ignited a long and bloody struggle that eventually brought about the Glorious Revolution.  Thereafter, the 1689 English Bill of Rights confirmed the “ancient rights” of Englishmen and enshrined the notion that the monarch had no “dispensing power” to waive the application of the laws of the realm.  


          As many noted historians and legal scholars have observed, the American Founders were well versed in these seventeenth-century English constitutional struggles. Viewing themselves as heirs to the English political tradition, the framers of our new nation set out to establish a system of government with an eye toward preventing similar abuses.


          With the old monarchy’s abuse of the claimed dispensing power fresh in their minds, the Founders’ initial plan of government in the Articles of Confederation did not even include an executive. When that framework proved unworkable, the Framers drafted—and the States ratified—a Constitution that avoided either historical extreme: an all-powerful executive that claimed the power to dispense with the bounds of law, or a powerless executive lacking the capacity to govern effectively.


          The structural features of our Constitution navigate between these two poles, creating an energetic executive but carefully cabining his power. It vests legislative authority in Congress, not the President. While the precise line between enforcement discretion and lawmaking may sometimes seem blurry, the Constitution makes clear that changes to the law are the province of the legislative rather than the executive branch—and that when Congress and the President have enacted statutory law, the executive cannot unilaterally displace it.  


          The Constitution also requires the President to “take Care that the Laws be faithfully executed.”  This clause does not suggest or invite the President to enforce the law—it obligates him to do so.  And he is bound by the text of the Constitution to do so “faithfully.”


          To execute the laws faithfully, as defined by the great Samuel Johnson, author of the most definitive dictionary of that age, is to do so “honestly,” “[w]ith strict adherence to duty and allegiance,” and “[w]ithout failure of performance.”[4] As a diverse array of legal scholars have noted, it is “implausible and unnatural” to read this clause to allow the President authority to deviate from the loyal enforcement of federal statutes.[5]


          James Wilson, the original proponent of the Take Care Clause, put it this way: the President has “authority, not to make, or alter, or dispense with the laws, but to execute and act the laws, which [are] established.”[6] As the Supreme Court observed: “To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible.”[7]


          There are, Mme. President, certain situations in which the executive may in fact legitimately ignore or even contravene a duly enacted federal statute.  But such circumstances are few and far between.


          Presidents of both parties have long claimed authority not to enforce unconstitutional statutes. According to this view, if the considered view of the executive branch determines that a statute clearly violates the Constitution—the highest law—then that statute is no law at all and does not warrant enforcement.


          Presidents have also sought to justify partial non-enforcement based on a lack of sufficient resources.  As the Supreme Court has explained: “The President performs his full constitutional duty, if, with the means and instruments provided by Congress and within the limitations prescribed by it, he uses his best endeavors to secure the faithful execution of the laws enacted.”[8]  In other words, the Constitution still obligates the President to do his best to ensure that duly enacted laws are faithfully executed, even when he and his subordinates are working with limited resources. In such cases, he is obligated to ensure that those resources are optimally allocated to achieve as faithful execution as is possible.


          Sadly, Mme. President, political expedience and ideological fervor has led our current President to disregard his fundamental obligation to “take Care that the Laws be faithfully executed.”


          Take, for example, the nation’s drug laws, an area where the Obama Administration has decided that it disagrees with the criminal statutes on the books and wants to implement a different policy, no matter the governing federal law. As I noted earlier, the Administration’s massive clemency push seeks to employ the President’s specific constitutional power—one limited to relieve individual instances of injustice—to provide relief to large swaths of criminals who fit a few broad criteria.


          The President has also directed major changes over which federal drug crimes are charged and at what level, citing prosecutorial discretion—a limited authority derived from the power to adapt enforcement to an individual’s specific circumstances—to implement broad criteria affecting thousands of prosecutions. Given the scope of this executive action, compared to its narrowly tailored authority, the Administration’s invocation of prosecutorial discretion has become a transparent excuse used to try to justify flouting existing federal law.



          Much the same is true in the context of immigration. The Administration has advanced a growing number of enforcement carve-outs for increasingly expansive classes of illegal immigrants. First, it exempted those brought here as children. Then veterans. Then their families. Now, the Administration may seek to exclude from application of duly enacted immigration law anyone who hasn’t committed serious felonies. While of course no one disagrees that violent criminals should be our highest priority, the Administration has gone much further and essentially made current immigration law a dead letter for virtually everyone else.


          Last week I joined twenty-one of my colleagues in a letter to the White House highlighting this executive abuse. How can the Administration even claim it is attempting to faithfully execute immigration law when almost all deportations last year were limited to convicted criminals and recent border-crossers? When ICE agents were forced to release 68,000 potentially deportable aliens last year alone? When the Administration took disciplinary action against ICE officers for making lawful arrests? When the President of the National ICE Council felt compelled to testify before Congress that although “most Americans assume that ICE agents and officers are empowered by the Government to enforce the law. . . . [n]othing could be further from the truth”[9]?


          Another egregious example of this Administration’s willful failure to faithfully execute the law involves education. The Department of Education has given forty-two of the fifty states waivers from application of No Child Left Behind. Rather than seek a legislative reauthorization of the statute to set realistic goals going forward, the Administration has chosen simply to establish their preferred education policy by attaching their own conditions to the waivers that states need to receive federal money.


          Recently, the State of Washington became the first to lose its waiver, primarily because it did not meet the Administration’s mandate for teacher and principal evaluation—a mandate that has no grounding in the actual statute.  When the vast majority of states receive waivers by meeting conditions that bear little resemblance to provisions of the law itself, is the Administration faithfully executing the law as required under the Constitution?


          To the contrary, the President is using waiver conditions to bring about an entirely different set of education policies.  And he is doing so to avoid spending his energies and political capital on a legislative process that might expose divisions within his own party or force his Administration to compromise with those who do not share all of his policy preferences.


          Of course, Mme. President, any discussion of executive overreach by this Administration must include Obamacare. Back when the Administration was writing that 2,000-plus page monstrosity, the bill’s proponents argued that its length and complexity were necessary evils—that its many intricate parts were essential to achieve the bill’s promised objectives.


          The individual mandate, the employer mandate, the minimum coverage requirements, the cuts to Medicare Advantage, and the limits for subsidies to state-run exchanges—we were promised that these provisions and others were both critical and carefully timed to expand coverage and rein in costs.


          Yet when the time came to implement the law, the Administration’s tune changed. To justify violating a number of clear statutory mandates, the Administration has mustered a weak and unconvincing hodgepodge of legal acrobatics—all for the purpose of allowing the Administration to avoid enforcing the central provisions of its own signature law.


          And, when we in Congress have offered legitimate legislative fixes, to provide hardworking Americans relief from Obamacare’s disruptive effects, the White House has displayed shocking audacity in threatening to veto lawful delays to some of these cuts and mandates.


          Mme. President, I don’t know if anyone could imagine a better example of an administration allowing political expediency and ideological commitments to trump the President’s constitutional obligations to “take Care that the Laws be faithfully executed.”


          Equally troubling, where the President’s legislative efforts have failed, he has decided simply to regulate—seemingly undeterred from stretching his existing statutory authorities past their breaking point. Again, this is the very definition of executive abuse.


          For example, a hallmark of the President’s so-called “pen-and-phone” strategy was to sign an executive order forcing federal contractors to raise their minimum wage. He issued this directive despite the fact that there’s already a federal statute that governs the minimum wage for federal contractors. Although a different statute gives the President some discretion in the area of federal procurement, its plain language demands—as courts have long held—that there be a sufficient nexus between the President’s orders and the statute’s stated goal of efficiency and economy in federal procurement. Increasing a contractor’s labor costs by hiking their minimum wage is wholly inconsistent with this statutory goal, demonstrating there is no legal basis for the Administration’s executive order.


          Yet another area of grave concern is the effort by this White House to establish new institutional arrangements that fail to respect the separation of government powers and the basic principle of checks and balances enshrined in our Constitution.


          Take the Dodd-Frank bill, another signature piece of the President’s agenda. All Americans should be concerned with the unchecked institutional form of the newly created Consumer Financial Protection Bureau.  This Administration’s unwavering devotion to expanding the scope and reach of federal regulation was made manifest in efforts to place the CFPB beyond Congress’ constitutional power of the purse.  The CFPB Director is empowered to collect a certain percentage of the Federal Reserve’s operating expenses, indexed to inflation, thereby denying Congress its rightful authority to allocate federal spending and keep the agency in check with respect to its overweening regulatory ambitions. What the White House sought was unaccountable executive power—a CFPB that could regulate with virtually no meaningful restraint.


          When a number of my colleagues and I expressed a desire to address these serious objections to the CFPB structure before confirming the President’s choice to lead the agency, the White House decided that abiding by the appointments process established by the Constitution was too inconvenient. Determined to press forward with the Administration’s agenda at all costs, the President simply installed his choice for CFPB Director, as well as other key federal officers, without the advice or consent of the Senate. Again, the height of executive arrogance.


          The Administration sought to justify this move by citing the President’s power under the Recess Appointments Clause. But all the relevant legal authorities suggested otherwise. The original public meaning of the clause, well-established historical practice, the constitutional requirement for the House of Representatives to consent before the Senate may adjourn for more than three days, the Senate’s constitutional authority to set its own rules, and the Senate’s own determination that it was not in recess at the time—all of this made clear that the President had no authority to make the appointments unilaterally.


          Yet, as an indication of its willingness simply to ignore the law and the Constitution, that is precisely what the President did. This brazen lawlessness cannot stand.  And it won’t. Already, several federal appeals courts have ruled that these appointments were unconstitutional, and most observers expect the Supreme Court to agree. 


          Yet the Obama Administration remains undeterred. Having decided to bypass Congress and go it alone, the White House has likewise sought to remove meaningful accountability by means of the federal judiciary.


            As in the recess appointments cases, federal courts have rejected a variety of this Administration’s lawless actions and vindicated critical constitutional rights.  No court has served as a greater check on executive overreach than the D.C. Circuit Court of Appeals, which oversees most federal regulatory actions.  So the White House has sought to remove even this modest restraint.


          After the D.C. Circuit rightfully invalidated several key Administration actions as outside the bounds of federal law, the President sought to pack that court with compliant judges in order to obtain more favorable decisions. The President’s allies in this body—in their own words— “focus[ed] very intently on the D.C. Circuit,” determined to “switch the majority” on the court, and were willing to “fill up the D.C. Circuit one way or another.”[10] In the rush to eliminate any possible judicial obstacle to unilateral progressive advances, they ran roughshod over the rules and traditions of this body, working untold and permanent damage to two venerated institutions of our constitutional system.


          Mme. President, this whole episode demonstrates a brazen willingness on the part of this Administration to ignore virtually any legal or constitutional constraints—and even tamper with the judiciary—simply for the sake of advancing its own ideological objectives. I have only had time today to scratch the surface of a pattern of executive abuses in areas as diverse as EPA and NLRB regulatory actions, inappropriate IRS targeting, net neutrality rulemaking, and the refusal to defend the Defense of Marriage Act.


            Such executive lawlessness should be troubling to all Americans, regardless of political stripe or partisan affiliation. It is the Constitution—the political institutions it established, the legal framework it enshrined, the checks and balances it requires—that ensures we remain a government of laws and not of men. Absent these essential restraints, we will all become subject to increasingly arbitrary rule—a government that knows no bounds and seeks to regulate and control virtually every aspect of our lives.


            President Obama once spoke of the necessity for such restraint. He warned of the dangers associated with unilateral executive action. And he highlighted the critical importance of adhering to constitutional procedures.


          While campaigning for President in 2008, he said: “I taught constitutional law for ten years. I take the Constitution very seriously. The biggest problems that we’re facing right now have to do with [the President] trying to bring more and more power into the executive branch and not go through Congress at all, and that’s what I intend to reverse when I’m President of the United States of America.”[11]


            How far we have come since Candidate Obama made those empty promises.


            Mme. President, I’ve been a member of this body for nearly four decades.  I have worked with a half dozen presidents.  On many occasions, we’ve been able—working together—to accomplish great good for the American people.


            My concern today is not partisan. My criticisms are not ideological. Nor is my interest, as a member of the Senate, simply institutional. Throughout my years as a member of this body, I have acknowledged and defended the power of the President when he acts lawfully. In the national security context in particular, where the President is at the height of his constitutional and statutory authorities, I’ve defended the prerogatives of the President, no matter the party occupying the White House, and no matter the political unpopularity of doing so.


          The concerns I have expressed today are about legitimacy: what authority to govern does the President—or do any of us—have except that which we derive from the Constitution? My criticisms are about restoring accountability: how are we to keep this or any Administration honest when it seeks to cut out Congress’s legitimate role in the governing process? Above all, my observations today are about liberty.


          If we are to maintain our freedoms—which so many of our fellow citizens have fought and died to preserve—we must always remember to heed James Madison’s warning in Federalist 47 that: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Mme. President, it is essential to the continued well-being of our nation, to the legitimacy of our government, and to the liberties of our citizens, that the exercise of executive power is kept within lawful bounds. Doing so requires continual vigilance—by the court, by Congress, and by the American people—to uphold the standards of the Constitution.


          Mme. President, let me close with a word of warning from President George Washington, perhaps even more true today than when he spoke it:


If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.


Thank you, Mme. President.


[1] Esther Yu-His Lee, Why Obama Told A Protestor He Doesn’t Have The Power To Stop All Deportations, ThinkProgress, Nov. 25, 2013,

[2] Id.

[3] Id.

[4] 1 Samuel Johnson, A General Dictionary of the English Language 763 (1755),

available at

[5] Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration’s Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 Tex. L. Rev. 781, 799 (2013); see also The President’s Constitutional Duty to Faithfully Execute the Laws: Hearing Before the H. Comm. on the Judiciary, 113th Cong. 11 (2013) (statement of Prof. Jonathan Turley) (offering similar observations from an opposite ideological perspective).

[6] 2 James Wilson, Lectures on Law Part 2in Collected Works of James Wilson 829, 878 (Kermit L. Hall & Mark David Hall eds., 2007).

[7] Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 613 (1838).

[8] Myers v. United States, 272 U.S. 52, 291–92 (1926) (Brandeis, J., dissenting).

[9] America’s Immigration System: Opportunities for Legal Immigration and Enforcement of Laws against Illegal Immigration: Hearing Before the H. Comm. on the Judiciary, 113th Cong. (2013) (statement of Chris Crane).

[10] Sahil Kapur, Harry Reid Escalates Filibuster Showdown Over Judges, Talking Points Memo, Aug. 9, 2013,; Eric Scheiner, Schumer On Judicial Appointees: We Will Change the Rules to ‘Fill up The DC Circuit, CNS News, Mar. 20, 2013,

[11] Obama 2008: Bypassing Congress Unconstitutional; I'll Reverse It, YouTube, Feb. 13, 2014,