As president, Barack Obama has made a habit of bypassing or ignoring constitutional limitations on his power, a panel of experts told the House Judiciary Committee on Wednesday.
Obama’s claiming of executive privilege during the Fast and Furious debacle has already faded from the headlines, and it may be hard to remember the weight of the outrage expressed at the beginning of the year, when Obama made a handful of unilateral “recess” appointments, opting to bypass a Senate that wasn’t actually in recess.
But these incidents and a number of others were strung together at the hearing as proof of a dangerous trend in the administration.
“The administration has repeatedly put its partisan agenda above the rule of law,” committee chairman Lamar Smith (R-Texas) said. “In doing so, it has eroded the constitutional and legal foundation that have kept America prosperous and free for over 200 years.”
Smith enumerated other instances of alleged presidential overreach, including Obama’s decision to stop enforcing parts of U.S. immigration law to allow illegal aliens to stay in the country legally if they meet certain criteria and waivers issued to the No Child Left Behind Act and welfare reform bill that Smith said “effectively rewrite the law instead of enforcing it.”
“Just because you don’t like a law, doesn’t mean you can ignore it,” Smith said. “Many people have gone to jail for doing just that.”
He did not call for legal action against the president of the sort that some legislators took when Obama took military action in Libya without consulting Congress, but let Obama’s record speak for itself as examples of presidential overreach that should not become future presidential habit.
Sen. Mike Lee (R-Utah) a noted constitutional scholar in Congress and a witness on the panel, told the committee that Obama’s abuse of power by making recess appointments while the Senate was not actually in recess was a historic first.
“No president has ever made a unilateral appointment during an adjournment lasting less than three days,” he said.
Lee also noted that executive privilege had been misused in the case of Fast and Furious, Congress pressed for full documentation of the operation following the discovery that a previous Department of Justice letter about the matter had been intentionally misleading and inaccurate.
“The privilege disappears altogether whenever there is any reason to believe government misconduct has occurred,” Lee said.
Lori Windham, senior counsel to the Becket Fund for Religious Liberty, testified that the Obama administration’s decision to require religious organizations to supply contraceptives and abortifacients to their employees or pay a fine was part of a longer tradition by Obama of dismissing religious concerns. Arguing last year in favor of churches and other houses of worship choosing clergy according to their own religious principles without interference in the Supreme Court case Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, she said, “I was not alone in my shock when the Obama Administration’s lawyers opposed our position by arguing that churches are no different than bowling clubs, and that our First Amendment guarantee of religious freedom does not protect religious organizations.”
Ultimately, the court ruled unanimously in favor of religious groups.
Windham said the administration’s actions set a dangerous precedent that extended beyond religious practice.
“If the government can trample First Amendment freedoms, then none of our fundamental rights are secure,” she said.
Ultimately, Lee said even those who support Obama should understand the need for accountability and challenges to his actions when he oversteps his constitutional bounds.
“These things happen not because we’ve had bad men as presidents. We haven’t,” he said. “We’ve had good men, and that includes our current president. These things happen because presidents are human beings.”
The system, he said, includes checks and balances for a reason.
“We cannot ignore abuses of power. Because if we ignore them, they become part of established practice and tradition,” he said.