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Home > Blog > All > Executive power

Executive power

  • March 22, 2012

    Pushing Back Against the Wobbly, But Effective Health Care Law Scare Tactics

    by Jeremy Leaming

    Someday soon, perhaps not soon enough, the fear mongering over the landmark health care reform law, the Affordable Care Act, will be relegated to the dustbins of history.

    The scare tactics we’ve lived with for what feels like a decade – the ACA’s minimum coverage provision, requiring Americans who can afford to do so to start paying for a minimum amount of health care coverage in 2014 is an unprecedented expansion of congressional power and a dire threat to liberty as we know it – are getting even louder as oral argument in the case approaches.

    The usual suspects, Fox News and rightwing radio host Rush Limbaugh have been the ringleaders of sloppy reasoning and fear mongering, as Media Matters’ David Lyle notes in cogent fashion.

    Lyle’s piece documents the shrill arguments – you’ve heard them – if Congress can force us to purchase a minimum amount of health care coverage, then surely it'll pass laws soon to force us to purchase gym memberships, organic foods, and American automobiles.

    But Lyle notes this “slippery slope argument turns out, however, to be too slippery by half, and it gets both the Constitution and the facts of the health care marketplace wrong.”

    On a Feb. broadcast, Limbaugh suggested once people are required to purchase a minimum amount of health care coverage, then what can stop the government from “making us buy a stupid electric car.” Lyle cites a slew of other examples peddling the slippery slope scare tactic.

    But Lyle notes, what others have before “legal and health policy experts have explained, contrary to the right-wing’s ‘broccoli mandate’ talking point, the Affordable Care Act appropriately addresses failures in the health insurance market using the broad powers the Constitution gives Congress to regulate the national economy, and does not lead to the absurd results opponents have imagined.”

    More
    Tags:
    Executive power, Supreme Court, Constitutional Interpretation and Change, ACA, Affordable Care Act, Commerce Clause, Congress, Fox News, Linda Greenhouse, minimum coverage provision, Rush Limbaugh
  • March 19, 2012

    The Radical Argument to Topple the Health Care Reform Law

    by Jeremy Leaming

    If the Supreme Court’s conservative wing finds a way to ignore precedent and sticks together to strike the integral provision of the Obama administration’s landmark health care reform law, it will egregiously misread the Constitution, write Akhil Amar and Todd Brewster for Constitution Daily.

    The two provide reasons why striking the law's minimum coverage provision would represent such a flawed interpretation of the Constitution, which have been reiterated on this blog numerous times. And Amar has authored other articles and spoken often of the Patient Protection and Affordable Care Act and how its minimum coverage provision is constitutional. As noted by ACSblog last week, the majority of experts on the health care law believe the Supreme Court’s right-wing will not carry the day, and the law will be upheld.

    Amar and Brewster tackle two of the main arguments against the law’s minimum coverage provision, which staring in 2014 requires Americans who can afford to do so to purchase health care coverage or pay a penalty when filing their income tax returns. As Amar and Brewster note the opponents of the Affordable Care Act have attempted to make the argument that Congress with its passage of the law has taken major swipe at liberty – that is by allegedly forcing people into the health care insurance market.

    But Amar and Brewster, in accessible form, explain why the liberty argument fails – mainly because the Constitution provides Congress the powers to tax and spend, and regulate interstate commerce. The Supreme Court, moreover, has since the late 1930s, interpreted those powers to be broad ones.

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    Tags:
    Executive power, Supreme Court, Constitutional Interpretation and Change, Affordable Health Care Act, Commerce Clause, Health Care Reform, Obama administration, Professor Akhil Amar, Taxing Power, Todd Brewster
  • March 1, 2012

    ‘Catch Me If You Can’: How Bush and Cheney Attempted to Protect Themselves, But Failed

    BookTalk
    Cheating Justice
    How Bush And Cheney Attacked The Rule Of Law, Plotted To Avoid Prosecution, And What We Can Do About It
    By: 
    Cynthia L. Cooper and Elizabeth Holtzman
    Available Here

    By Cynthia L. Cooper, an award-winning journalist and lawyer, and Elizabeth Holtzman, a lawyer, former prosecutor and former member of Congress who served on the House committee that investigated Watergate.

    When President George W. Bush and his team left office, mounds of misdeeds were left to fester. Some of their transgressions in office were so shocking – lying to Congress in order to embroil the nation in war and occupation, illegally wiretapping Americans without warrants, authorizing torture that had been outlawed by U.S. and international law – that he and Vice President Cheney probably should have been impeached and removed from office.

    Instead, they completed their terms and sped away. Even though Bush publicly announced in his 2010 memoir that he had personally authorized waterboarding, a recognized form of torture  -- “Damn right,” he is quoted as saying – hardly a peep was heard about seeking accountability. But how can that be? Key to preserving our democracy is the concept that no person is above the law.

    In order to ignite a national conversation on the topic, we set out to show how and why the president and vice president should be held accountable – especially, how they can be prosecuted. That meant looking at the available evidence, investigating precisely what laws are implicated and determining, as best as possible, whether a prima facie case could be made. We found enough to make a courageous prosecutor sit up and take notice, although the statute of limitations is ticking in some areas. We found clear problems under laws related to the conspiracy to deceive Congress, foreign intelligence surveillance and U.S. anti-torture laws – each of which needs prosecutorial attention.

    Along the way, we found something else disturbing, too: a repeated pattern by which Bush and Cheney took extraordinary efforts to protect themselves from the sting of the law. In Cheating Justice: How Bush and Cheney Attacked the Rule of Law, Plotted to Avoid Prosecution – And What We Can Do About It, we look at both: how the ex-president and vice-president can be held personally accountable, but, also, how they tried to manipulate the system from inside to keep themselves from being held to account.

    Perhaps the most startling example of their extraordinary actions was the gutting of the War Crimes Act of 1996. 

    More
    Tags:
    Detainee treatment, Executive power, National security and civil liberties, Criminal Justice, Separation of Powers and Federalism, BookTalk, George W. Bush, Guantanamo Bay, Hamdan v. Rumsfeld, Military Commissions Act of 2006, Torture, War Crimes Act of 1996
  • February 2, 2012

    Stop Knocking the OLC Over Reasoned Analysis of Recess Appointments, ACS’s Fredrickson Says

    by Jeremy Leaming

    Fuming over the recess appointments President Obama made in January, Iowa Sen. Charles Grassley leveled threats against the Assistant Attorney General Virginia Seitz who authored a legal memorandum backing those appointments. Not only attacking her legal analysis, Grassley said Seitz (pictured) should never be confirmed again for any position.  

    In a piece for The Huffington Post, ACS President Caroline Fredrickson takes Grassley to task for his misguided attacks on Seitz, who he voted to confirm to lead of the Office of Legal Counsel, which is charged with providing legal advice to the president and all executive agencies.

    Fredrickson writes:

    Seitz’s memorandum is straightforward and relies on precedent and historical practice of past attorneys general. If it’s unconvincing to Grassley that’s only because it helped the president stand up to the ongoing obstruction orchestrated by Grassley’s party.

    Since coming into office, President Obama has faced an intensifying front of opposition to his judicial, and many of his executive branch selections. For example, the obstructionism has greatly hobbled our federal courts, where there are more than 80 vacancies and caseloads of courts throughout the nation continue to swell, leaving far too many Americans without access to an efficient judicial system.

    After more than a year of going without a chief, the president moved on naming Richard Cordray to lead the Consumer Financial Protection Bureau. Faced with three vacancies on the five-member board of the National Labor Relations Board, and ongoing of obstruction of nominees to those seats, the president used recess appointments to keep the agency functioning.

    More
    Tags:
    Executive power, Assistant Attorney General Virginia A. Seitz, Caroline Fredrickson, Office of Legal Counsel, OLC, recess appointments, Richard Cordray, Sen. Charles Grassley, Sen. Mike Lee, The Des Moines Register
  • February 1, 2012

    With Recess Appointments, Obama Is Executing Duty to Enforce Laws, Professor Testifies

    by Nicole Flatow

    In recess appointing Richard Cordray to the Consumer Financial Protection Bureau and three others to the National Labor Relations Board, President Obama has acted “sensibly and soundly to defend his own prerogatives,” UNC Chapel Hill constitutional law professor Michael Gerhardt said during a House Oversight and Government Reform Committee hearing Wednesday.

    During a more than three-hour hearing that featured sharp questioning and a host of objections to President Obama’s actions by Sen. Mike Lee, Gerhardt explained the clear constitutionality of President Obama’s action, and praised the Office of Legal Counsel’s recent memorandum defending the legality of the action as a “perfectly good example” of the kind of nonpartisan legal analysis performed by the office.

    After dismissing arguments that President Obama did not act during an actual “recess” because the Senate held pro forma sessions every three days, Gerhardt went further to explain that Obama has an affirmative constitutional duty to enforce the laws faithfully, which he was aiming to effectuate in making recess appointments.

    “No doubt in this case the president considered that if he didn’t act there would be laws left unenforced --  laws that he’s obviously trying to do what he can to put into implementation,” Gerhardt said.

    Some of the other witnesses testified that the recess appointments have resulted in uncertainty for businesses, because decisions made by the NLRB and actions taken by the CFPB may be invalidated if legal challenges to Obama’s appointments are successful.

    But Gerhardt agreed with Rep. Danny Davis during questioning that all actions and major pieces of legislation are subject to legal challenge, and there is nothing unique about Obama’s recess appointments.

    “It’s sort of a false premise to say that recess appointments are likely to create litigation when the litigation is likely to take place in any event,” Davis said. “Whether these are recess appointees or any other kind of appointees, individuals still have the option to ask for judicial review.”

    Around the same time that this hearing was occurring, the Senate Banking Committee was also reviving the issue of Obama’s recess appointments during an oversight hearing involving Richard Cordray.

    As The National Law Journal’s Jenna Greene explains:

    More
    Tags:
    Executive power, Financial regulation, Labor law, Economic, Workplace and Environment Regulation, Judicial Nominations, Separation of Powers and Federalism, Consumer Financial Protection Bureau, NLRB, recess appointments, Richard Cordray
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