The hearing will take place on Wednesday at 10am ET in 2141 Rayburn House Office Building. Other witnesses on the Republican side include Lee Casey of Baker Hostetler and Lori Windham of The Becket Fund for Religious Liberty. The hearing is expected to cover the following instances in which the Administration has ignored Congress's constitutional role:
Asserting the power to suspend the application of Congressionally-enacted laws
• The Executive branch has authority to set law enforcement priorities and to exercise prosecutorial discretion, but the Obama Administration has distorted and stretched these doctrines to unconstitutional ends. By claiming the power to allow entire laws to go unenforced, the Administration has effectively suspended laws with which he disagrees. This is most flagrantly exhibited in the Administration’s decision to no longer enforce the Immigration and Nationality Act as to illegal immigrants who came to the United States as minors—effectively imposing the DREAM Act that failed to pass Congress.
2) Evading the Senate’s Advice and Consent power
• In January, the Administration decided to evade constitutionally mandated Senate review of its appointments by making “recess” appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau even when the Senate, by its own rules, was in session.
• The Administration has increasingly relied on its own “czars” and White House personnel to set Administration policy in order to evade the Senate’s advice and consent power. The Senate confirmation process was designed to keep Executive branch policy Officers accountable before taking office. When White House personnel—who are not only unconfirmed but who do not answer to Senate-confirmed superiors—set policy, this Constitutional check on the President’s power is evaded.
3) Repeatedly making regulations for which it lacks authority
• The Administration has imposed its partisan agenda through myriad regulations that go far beyond the powers granted by Congress. For example, the Federal Communications Commission issued “net neutrality” regulations despite that Congress had never granted it the authority to regulate the internet. In fact, the D.C. Circuit had specifically held that the FCC lacked this enforcement authority.
• The Presidential Task Force on the Auto Industry, acting on no legislative authority other than the raw power the Administration gained over GM & Chrysler when it bailed those companies out, abused the bankruptcy code to advance the Administration’s political interests over the rule of law.
4) Flouting Congress’s oversight function
• The Administration’s contempt for Congressional oversight has undermined the Constitutional balance that requires the Executive branch to answer to the Legislative branch that authorizes and funds it. Nowhere has the Administration’s contempt been more complete than in its misleading and stonewalling response to Congressional inquiries about the Fast & Furious scandal. For months, the Department of Justice refused to produce relevant documents, made false written assertions and gave misleading Congressional testimony. Then it dubiously asserted Executive privilege to avoid transparency. Ultimately, the Attorney General was properly held in contempt of Congress for his refusal to produce relevant, non-privileged documents.
5) Trampling individual rights under the Constitution
• The Administration has repeatedly ignored the Constitution’s protections for individual rights, and particularly religious liberty. Recently, it has interpreted Obamacare to require religious organizations to cover contraception in health care plans, even if paying for such coverage violates the religion’s tenets. A contraceptive mandate raises serious questions under the Religious Freedom Restoration Act and the First Amendment.