It came as no surprise that conservative and libertarian lawyers sharply criticized the president in Washington Wednesday at the Federalist Society‘s annual Executive Branch Review Conference. Yet even liberal constitutional lawyers were split over President Barack Obama, and would-be defenders offered half-hearted explanations of the legality of Obama’s actions that literally left the crowd laughing.
At the Mayflower Hotel just a few blocks from the White House, the Executive Branch Review Conference featured several debate panels of leading legal scholars and lawyers, and Obama was the principal target of each one.
In the panel “Suspension of Laws: What are the Limits of Executive Authority?” Prof. Jonathan Turley of George Washington University – a well-known liberal on some issues and libertarian on others – laid into Obama.
“President Obama is the president Richard Nixon always wanted to be,” said Turley after discussing a list of specifics. “If you look at the articles of [Nixon’s] impeachment, every one of those powers [Obama is] exercising, and yet there’s really not a pushback.”
Conservative Georgetown Law Prof. Nick Rosenkranz faulted Obama for effectively nullifying several laws on the books through complete non-enforcement. “There is a difficult line to be drawn between prosecutorial discretion on one hand [and] suspension of the law on the other hand,” said Rosenkranz.
Yet according to Rosenkranz, Obama has crossed that line.
Discussing the Constitution’s Take Care Clause, which provides that each president “take care that the laws be faithfully executed,” the professor explained, “The duty is the president’s alone… that is a personal duty of the president.” English kings claimed authority to “suspend laws unilaterally,” and those who adopted the U.S. Constitution wrote the Take Care Clause specifically to bar such unilateral executive power.
Rosenkranz said Obama’s suspending the Affordable Care Act’s (ACA) employer mandate is a gross violation of this constitutional command. The ACA specifies that the employer mandate went into effect on Jan. 1, 2014, and the professor faulted the fact that the Treasury Department’s statement suspending the mandate “makes no mention of this statutory deadline.”
“This is wholesale suspension of a law,” Rosenkranz asserted. Obama is “seeming to flout the law as written” rather than work with Congress to change the law.
The audience asked several pointed questions. When Brianne Gorod of the liberal Constitutional Accountability Center tried to defend Obama’s not enforcing provisions of the ACA, Prof. David Bernstein of George Mason University asked whether, if Obama had delayed enforcing provisions that would lead to unpopular outcomes until after the midterms for “purely political reasons,” that would be unconstitutional. “What if it’s not that he disagrees with the policies, but that he doesn’t want them to kick in until after the near-term elections?”
“I think that would probably not be okay,” Gorod said. But then she added that she didn’t think that is what is actually happening, at which point the entire room full of Washington lawyers erupted in laughter.
Ken Klukowski is senior legal analyst for Breitbart News and fellow with the American Civil Rights Union. Follow him on Twitter @kenklukowski.