Cruz 15 – United States Senator from Texas, served as the Solicitor General of Texas from 2003-2008 (Ted Cruz, Winter 2015, “THE OBAMA ADMINISTRATION'S UNPRECEDENTED LAWLESSNESS,” Harvard Journal of Law and Public Policy, Lexis)//twontwon
IV. THE OBAMA ADMINISTRATION'S UNPRECEDENTED NONENFORCEMENT OF FEDERAL LAW Unlike the presidential actions explained above, President Obama has categorically disregarded entire domestic policy statutes without any colorable constitutional objection.221 There is no basis in history for this sweeping view of executive power. Reasonable constitutional objections formed the basis for Lincoln's suspension of habeas corpus, Johnson's objections to removal restrictions, Roosevelt's objections to removal restrictions and legislative veto provisions, and refusals to abide by the War Powers Resolution. While Truman's seizure of the steel mills, Reagan's arms sales, and Bush's memorandum instructing Texas to obey the International Court of Justice may have been examples of a President disregarding federal law due to policy differences, those three instances were isolated outliers in American history and all involved foreign affairs. In contrast, President Obama has repeatedly ignored domestic policy statutes because he disagrees with them as a policy matter.222 This nonenforcementusurps Congress's legislative power and sets a dangerous precedent that allows future Presidents to disregard the duty to take care that the laws be faithfully executed. Imagine if a future Republican President were to disregard financial regulation like Sarbanes-Oxley or DoddFrank, or campaign finance regulation like McCain-Feingold, or environmental laws, because the President disagreed with the underlying policy. Democrats would be furious, and rightfully so. Yet the following examples of President Obama's disregard of federal law establish a pattern of suspending laws based on the policy prerogatives of this Administration. A. Obamacare President Obama's strategic nonenforcement of Obamacare-his "signature legislative achievement"-is the most egregious example of this Administration's failure to take care that the laws be faithfully executed.223 In at least six major ways, the Obama Administration has ignored and contravened the express text of the Affordable Care Act, even though there are no colorable constitutional rationales for doing so. First, without statutory authority, the Obama Administration unilaterally delayed the health insurance requirements imposed by Obamacare. Obamacare establishes the types of plans health insurance companies can offer consumers.224 These stringent requirements led to "at least 4.7 million" health plans being cancelled as of December 2013.225 These cancellations occurred, of course, despite the President's repeated assurances that "if you like your health care plan, you keep your health care plan" after the passage of Obamacare.226 Perhaps because the President saw that the devastating effects of Obamacare's requirements were not aligning with his promises, his administration unilaterally declared that individuals could continue purchasing health care plans in 2014 even if those plans violate the express requirements of the Affordable Care Act and its regulations.227 Months later, following Obamacare's disastrous rollout, the Administration extended this delay to 2016, past the mid-term elections.228 The Act, however, was required by statute to take effect on January 1, 2014.229 To make matters worse, the President remarkably threatened to veto any legislation that codified this lawless exemption that the Administration unilaterally imposed.230 That is the opposite of taking care that the laws be faithfully executed; that is usurping Congress's legislative power while then blocking Congress from enacting the precise policy supported by the President. Second, President Obama effectively delayed Obamacare's individual mandate for two years by massively expanding existing exemptions from the individual mandate to allow anyone claiming hardship an exemption. The individual mandate is a statutory command that imposes monetary penalties on most people who fail to maintain health insurance coverage required by Obamacare.231 This was "Congress's solution" to "prevent costshifting by those who would otherwise go without [health insurance]" and "force  into the insurance risk pool more healthy individuals."232 After Obamacare's failed rollout, the Administration said it would allow people to opt out of the individual mandate for two years if they simply filled out a form attesting that the Obamacare health insurance exchange plans were too expensive.233 Strikingly, just months earlier, the President and Senate Democrats chose to force a government shutdown instead of accepting a one-year delay of the individual mandate.234 So just like President Obama's threat to veto legislation implementing his unilateral waiver of Obamacare's health insurance requirements, here again the President and Democrats blocked legislation that would have achieved the same policy objective that the President unlawfully imposed through executive fiat. Third, the Obama Administration has decreed that Obamacare's out-of-pocket caps will not apply in 2014. Obamacare caps the amount of out-of-pocket costs that people have to spend on their own health insurance.235 So according to federal law, starting in 2014, individuals and families would have to spend no more than $6,350 and $12,700, respectively.236 But just like it delayed the health insurance requirements, the Obama Administration unilaterally delayed enforcement of the out-of-pocket caps-burying the announcement of the delay in one of 137 Affordable Care Act FAQs found on the Department of Labor's website.237 Fourth, this Administration ignored the plain text of Obamacare when it delayed the employer mandate-twice. Obamacare penalizes employers who employ over fifty "full-time" employees if they do not offer health care coverage that the government deems to be "affordable," and the employee consequently receives a federal subsidy to purchase an insurance plan in a state health insurance exchange.238 Yet the Obama Administration announced, in a blog post, that it would not enforce the employer mandate in 2014.239 Months later, it delayed the employer mandate for medium-sized employers until 2016.240 Fifth, the Administration drastically expanded the individual and employer mandates and is sending billions of dollars in subsidies to insurance companies beyond what the text of Obamacare allows by granting federal subsidies to buy health insurance in all states instead of only in those states that create health insurance exchanges. According to the statute, the employer mandate is only supposed to be assessed if at least one full-time employee is enrolled in a health insurance exchange for which a federal tax credit subsidy is available.241 These federal subsidies are available only when an individual purchases a health plan "through an Exchange established by the State."242 According to Obamacare's text, the subsidies are not available if the health plan is purchased through an exchange not established by a state, such as a federally established exchange. Consequently, no federal subsidies should be available in the 36 states that have refused to create health insurance exchanges.243 A three-judge panel of the D.C. Circuit has already affirmed this plain text reading of Obamacare.244 Although the Fourth Circuit refused to enforce the statutory text, that decision has been appealed to the Supreme Court, and the case will be decided this Term.245 If subsidies are not available in states that do not form exchanges, the individual mandate will apply to significantly fewer people in those states-because the individual mandate applies only if the annual cost of the least expensive coverage minus subsidies exceeds 8% of projected household income.246 But instead of following the plain text of Obamacare, the Administration is granting federal subsidies in every state, including those that have not created state health insurance exchanges.247 The Administration lawlessly interpreted "Exchange established by the State" to include federally established exchanges.248 Sixth, the Obama Administration ignored the text of Obamacare to grant subsidies to members of Congress and their congressional staff. Obamacare and other federal statutes contain explicit language requiring members and their staff to get their health insurance through exchanges without subsidies.249 Specifically, members and most congressional staff are required, by Obamacare, to purchase individual health plans from exchanges just like millions of Americans.250 But the federal subsidies for health insurance that members and staff have received in the past are only available if their plans were "group insurance policies]," to quote a federal statute.251 The ACA makes no provision for the government to continue to pay premiums on behalf of members and their congressional staff.252 Yet, because that requirement is onerous, the Administration granted the request from Senate Democrat Majority Leader Harry Reid to disregard the plain language of the statute.253 According to the Administration, the individual health plans Members and staff bought through health exchanges qualify as "group" plans, enabling the Administration to give these subsidies to Members and staff unlawfully.254 All of these refusals to enforce the plain text of Obamacare share a crucial element in common: The President is categorically suspending statutory text without believing that the statute is unconstitutional. Rather, as President Obama's politically-appointed Assistant Secretary for Tax Policy explained,255 the Administration's refusal to enforce Obamacare is rooted in policy considerations of "adaptation]" and "flexibility]," as well as "concerns about the complexity of the requirements and the need for more time to implement them effectively."256 These failures to enforce Obamacare may prove beneficial to those Congress intended to regulate, and they may also prove more convenient for the administrative agencies who failed to promulgate appropriate regulations according to statutorily established timelines.257 The Administration has argued that prosecutorial discretion justifies the failure to enforce Obamacare. But prosecutorial discretion does not allow wholesale suspension of statutory provisions, which is precisely what this Administration has done in lawlessly implementing its signature legislative achievement. The Constitution does not recognize convenience and political expediency as reasons for executive suspension of laws. To the contrary, the Take Care Clause requires faithful enforcement of all laws-even laws the President wishes he did not have to enforce. B. Immigration Obamacare is not the only statute that President Obama has ignored on policy grounds. He has also ignored immigration law. President Obama recently announced that he would unilaterally grant amnesty to around five million illegal immigrants.258 This prompted Professor Turley, a noted liberal, to observe, "What the President is suggesting is tearing at the very fabric of the Constitution."259 In fact, years earlier, the President expressly acknowledged he had no authority to do this. In March 2011, he said, "With respect to the notion that I can just suspend deportations through executive order, that's just not the case, because there are laws on the books that Congress has passed."260 Moreover, President Obama remarked that if he granted any additional amnesty, "I would be ignoring the law in a way that I think would be very difficult to defend legally."261 The President's November 2014 amnesty did much more than just "prioritize" resources for removing illegal immigrants-it purported to affirmatively grant work authorizations for the millions of illegal immigrants covered by the edict. Prosecutorial discretion, of course, cannot justify the Administration's affirmative act to try to grant work authorizations, as prosecutorial discretion only deals with government inaction based on the individual facts and circumstances of a particular case. In anticipation of this objection, the Administration's Office of Legal Counsel (OLC) released a memo that unsuccessfully tries to justify these work authorizations on the basis that the Immigration and Nationality Act delegated the President this authority.262 The memo misreads 8 U.S.C. § 1324a(h)(3) in a manner that would give the President carte blanche to grant work authorization to any alienwho is in the United States illegally. Section 1324a(h)(3)-entitled "Definition of unauthorized alien"- a subsection of the federal prohibition on hiring illegal immigrants, and it defines which illegal immigrants count as "unauthorized alien[s]" who cannot be hired. It provides, in full: As used in this section, the term 'unauthorized alien' means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General [now the Secretary of Homeland Security]. The OLC memo interprets this definitional subsection not as a mere definition, but as an independent source of power for the DHS Secretary to grant work authorizations to any class of aliens.263 Under this reading, when § 1324a(h)(3) says "unauthorized alien[s]" are those who are not "authorized to be so employed ... by the Attorney General," that subsection is implicitly giving the Administration power to grant every single alien an authorization to work. Under that reading, there is no limit on the Administration's unilateral power to grant any illegal alien-including illegal immigrants not covered by the November 2014 amnesty-work authorizations. The OLC memo's interpretation of § 1324a(h)(3) is flawed in at least two interrelated ways. First, that subsection is merely a definition of which aliens count as "unauthorized" for work, and it does not purport to grant the Administration any additional power. Second, other provisions of the Immigration and Nationality Act already delineate narrow circumstances when the Administration "may grant work authorization to aliens lacking lawful immigration status"264-to quote the OLC memo itself-yet those provisions would be rendered superfluous under the OLC memo's reading of § 1324a(h)(3). In short, Congress never delegated to the executive branch complete discretion to grant work authorizations to any and all illegal immigrants. Instead, Congress created specific statutory provisions that cabined the Administration's power to do so, and the OLC memo ignores these structural limits by erroneously construing a definitional subsection, § 1324a(h)(3), to grant the Administration sweeping powers. The November 2014 amnesty was not the first time the Obama Administration ignored immigration law. Congress rejected-at least ten times since 2001-the Development, Relief, and Education for Alien Minors Act (DREAM Act),265 which would have allowed certain illegal immigrants a path to citizenship if they arrived in the United States illegally when they were fifteen years old or younger and met other requirements.266 Nevertheless, in January 2011, President Obama essentially implemented the DREAM Act through executive fiat. An Obama Administration Department of Homeland Security memorandum declared that "in the absence of Comprehensive Immigration Reform, USCIS can extend benefits and/or protections to many individuals and groups by... exercising discretion with regard to ... deferred action"-that is, "an exercise of prosecutorial discretion not to pursue removal from the U.S. of a particular individual for a specific period of time."267 Over a year later, on June 15, 2012, DHS instituted a "deferred action" program, currently known as the Deferred Action for Childhood Arrivals program (DACA).268 DACA includes a list of eligibility criteria that closely tracks the failed DREAM Act's criteria including that the individual must have arrived before turning sixteen, and DACA is purportedly based on "an exercise of prosecutorial discretion."269 Although the DACA order couches itself in terms of prosecutorial discretion used "on an individual basis," its instructions describe a broadranging program that preemptively applies to a wide scope of individuals who are not yet subject to any kind of removal order.270 Rather than clarifying a legitimate use of a prosecutor's discretion to bring or modify charges in a particular case, the order creates a wide-ranging policy framework with instructions to affirmatively apply it to an indeterminate group of people that have yet to be identified. The Obama Administration has invoked the doctrine of prosecutorial discretion to support its various rounds of immigration amnesty, most recently in the November 2014 OLC memo.271 But the November 2014 amnesty and DACA are far from legitimate uses of prosecutorial discretion. Simply saying the words "resource allocation," "individual basis," and "prosecutorial discretion" does not let the President wave a magic wand and make the Take Care Clause disappear. For example, DACA's criteria are general, "applying to every member of a class of perhaps 1.76 million people on the basis of a limited number of common characteristics. It requires no searching, [and no] individualized evaluation of the merits of particular applicants. All who possess the designated characteristics will qualify."272 And as Justice Scalia has noted, "The husbanding of scarce enforcement resources ... can hardly be the justification for this [policy], since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement."273 Recall former Obama Administration official Professor Cass Sunstein's words: "[T]here is a distinction" between "setting] enforcement priorities" and "allocat[ing] resources" versus "refusing to carry out the obligations that Congress has imposed on the executive."274 By rejecting the DREAM Act over ten times, Congress imposed on the President the command that he had to follow existing immigration statutes instead of the amendments contained in the DREAM Act. The Administration's November 2014 amnesty and its administrative implementation of the DREAM Act through DACA are not programs where the government decides in certain facts and circumstances not to enforce immigration laws because specific offices need to allocate resources differently. The November 2014 amnesty and DACA are blanket executive decrees that the President will not enforce this law "which it disapproves."275 Those decrees and their implementation violate the Take Care Clause. C. Drugs The federal Controlled Substances Act assigns mandatory minimum sentences for certain drug crimes.276 Obama Administration Attorney General Eric Holder, nevertheless, has said the Department of Justice "will no longer pursue mandatory minimum sentences for certain low-level, nonviolent drug offenders."277 That does not mean the Obama Administration will seek sentences greater than the mandatory minimums for these crimes. Rather, it means these crimes will not be prosecuted at all. Reasonable minds can disagree about whether mandatory minimum sentences are too harsh for certain drug crimes. In fact, I have cosponsored the Smarter Sentencing Act, which would reduce mandatory minimum sentences for certain low-level, nonviolent drug offenses.278 But that is the constitutionally permissible way to address this situation-by amending the existing statutes in Congress, rather than the President dispensing with these drug laws. While the executive's prosecutorial discretion lets it allocate enforcement resources, as explained above, this discretion does not allow categorical reprieves from federal statutes. Yet the Attorney General has announced that for an entire set of drug crimes, categorically and prospectively, the Obama Administration will not enforce duly enacted criminal laws.279 A proper exercise of prosecutorial discretion would allow the President to not prosecute outlier cases. But prosecutorial discretion cannot properly be used on a categorical basis, for this violates the Take Care Clause. Once again, the Obama Administration has distorted the separation of powers, usurped Congress's legislative power, and failed to take care that the laws be faithfully executed. D. Welfare In 1996, President Clinton signed into law the Personal Responsibility and Work Opportunity Reconciliation Act, which created the Temporary Assistance for Needy Families (TANF) program.280 TANF sought to discourage dependency and encourage employment by placing restrictions on welfare allocations. TANF gave states grants281 and provided that individuals could only receive benefits for up to five years.282 It also mandated that recipients engage in work within two years of receiving benefits,283 and this provision was heralded as the reason TANF succeeded.284 Welfare reform was a tremendous policy success, helping millions stand on their own feet and achieve the American dream. Welfare rolls were decreased by half and the poverty rate for African-American children reached its lowest point in U.S. history.285 The Obama Administration, in an HHS memorandum full of legalese, declared that states no longer had to follow TANF's work requirements and could dispense welfare even if recipients did not meet the TANF statutory standards.286 In the 1996 Act, however, Congress already provided a list of which statutory provisions the federal government could waive.287 The only part of TANF that was included in that list of waivable provisions was Section 402, which dealt with reporting requirements obligating states to tell HHS that they are complying with TANF.288 TANF's work requirements-in Section 407-were not listed as waivable. Nevertheless, the Obama Administration's HHS memorandum claims that because the federal government can waive TANF's reporting requirements in Section 402, it also has the authority to waive the substantive work requirements in Section 407.289 In the sixteen years since the 1996 Act was passed, no Administration had ever asserted this authority,290 because the statute's clear text forbids waiving TANF's work requirements. Although the Administration couches its argument as a dispute about statutory construction, this outlandish interpretation is just another example of President Obama ignoring duly enacted congressional laws. V. CONCLUSION President Obama's lawlessness is unprecedented in American history. Unlike any President before, President Obama has brazenly disregarded duly enacted statutes passed by Congress in a categorical, sweeping manner without raising any constitutional objections. The Take Care Clause was explicitly included in the Constitution to prevent the President from wielding the suspension and dispensation powers that had been abused by English kings. Not all Presidents in our history have acted in accordance with federal law. But of the most notable examples of Presidents fighting with Congress, most of these involved legitimate constitutional arguments about whether the executive or legislature had certain powers. Lincoln's suspension of habeas corpus, Johnson's objections to removal restrictions, Roosevelt's objections to removal restrictions and legislative veto provisions, and refusals to abide by the War Powers Resolution were reasonable constitutional disputes between the branches. Foreign affairs concerns were present in the other examples-Truman's seizure of the steel mills, Reagan's arms sales, and Bush's memorandum to Texas to obey the International Court of Justice. In contrast, President Obama has pretended that various domestic policy statutes do not exist when he disagrees with them based on his own policy preferences. As a United States Senator, Barack Obama had the power to introduce legislation and be part of Congress wielding its Article I legislative power. But as President, Obama does not have the power to legislate. He does not have the power to refuse enforcement of laws based simply on policy concerns. His repeated assertions of this power to suspend and dispense with duly-enacted laws violate the Take Care Clause and represent a profound threat to our constitutional checks and balances and, ultimately, to individual liberty.
Curtailing domestic surveillance undermines the sole organ doctrine – which underpins every facet of presidential power
Wood and Webb 11 – Department of Political Science at Texas A&M University, presented to the faculty at Vanderbilt University (B Dan Wood, Clayton Webb, 10/17/11, “EXPLAINING PRESIDENTIAL SABER RATTLING,” http://www.vanderbilt.edu/csdi/events/Wood_Presidential_Saber_Rattling_112111.pdf)//twontwon
The courts affirmed early on that as sovereign leaders, presidents are the nation’s chief foreign policy representative. Future Supreme Court Justice John Marshall stated in 1800 when he served in the U.S. House of Representatives ―The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.‖ (10 Annals of Congress 613) Relying on Marshall’s ―sole organ‖ doctrine, Supreme Court Justice George Sutherland wrote in 1937 (United States vs. Curtiss-Wright Export Corp , 299 U.S. 319) ―In this vast external realm [foreign policy], with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation.‖ While the plenary nature of executive authority in foreign relations is not universally accepted (e.g., see the persuasive arguments by Fisher 2006, 2007a, 2007b, 2007c, 2007d, 2007e, 2008a, 2008b), ***FOOTNOTE BEGINS*** . 2007d. "Statement by Louis Fisher appearing before the House Committee on the Judiciary, "Constitutional Limitations on Domestic Surveillance"." ed. L. L. o. Congress.***FOOTNOTE ENDS*** the modern chief executive relies extensively on the ―sole organ‖ doctrine to define presidential power broadly, and it is now commonly assumed that presidents are the sole representatives of the nation to the outside world.
Congressional war authority is ineffective – executive war powers key to combating a litany of transnational threats – combating terror, rogue states, and prolif all require a flexible executive
Yoo 7 (John is a professor of law at the Boalt Hall School of Law at the University of California, Berkeley, and visiting scholar at the American Enterprise Institute. He has also served as general counsel for the Senate Judiciary Committee; as a law clerk to Justice Clarence Thomas and Judge Laurence H. Silberman; and, from 2001 to 2003, as a Deputy Assistant Attorney General in the Office of Legal Counsel of the U.S. Department of Justice. 4/18, “Exercising Wartime Powers,” http://hir.harvard.edu/archives/1369)//dtang
Proponents of congressional war power often argue that the executive branch is unduly prone to war. In this view, if the president and Congress have to agree on warmaking, the nation will enter fewer wars and wars that do occur will arise only after sufficient deliberation. But it is far from clear that outcomes would be better if Congress alone had the power to begin wars. First, congressional deliberation does not necessarily ensure consensus. Congressional authorization may represent only a bare majority of Congress or an unwillingness to challenge the President's institutional and political strengths, regardless of the merits of the war. And even if it does represent consensus, it is no guarantee of consensus after combat begins. The Vietnam War, which was initially approved by Congress, did not meet with a consensus over the long term but instead provoked some of the most divisive politics in US history. It is also difficult to claim that congressional authorizations to use force in Iraq, either in 1991 or 2002, reflected a deep consensus over the merits of the wars there. The 1991 authorization barely survived the Senate, and the 2002 authorization received significant negative votes and has become a deeply divisive issue in national politics. Itis also not clear that the absence of congressional approval has led the nation into wars it should not have waged. The experience of the Cold War, which provides the best examplesof military hostilities conducted without congressional support, does not clearly come down on the side of a link between institutional deliberation and better conflict selection. Wars were fought throughout the world by the two superpowers and their proxies, such as in Korea, Vietnam, and Afghanistan, during this period. Yet the only war arguably authorized by Congress--and this point is debatable--was the Vietnam War. Aside from bitter controversy over Vietnam, there appeared to be significant bipartisan consensus on the overall strategy of containment, as well as the overarching goal of defeating the Soviet Union. The United States did not win the four-decade Cold War by declarations of war; rather, it prevailed through the steady presidential application of the strategy of containment, supported by congressional funding of the necessary military forces. On the other hand, congressional action has led to undesirable outcomes. Congress led the United States into two "bad" wars, the 1798 quasi-war with France and the War of 1812. Excessive congressional control can also prevent the United States from entering into conflicts that are in the national interest. Most would agree now that congressional isolationism before World War II harmed US interests and that the United States and the world would have been far better off if President Franklin Roosevelt could have brought the United States into the conflict much earlier. Congressional participation does not automatically or even consistently produce desirable results in war decision making. Critics of presidential war powers exaggerate the benefits of declarations or authorizations of war. What also often goes unexamined are the potential costs of congressional participation: delay, inflexibility, and lack of secrecy. In the post-Cold War era, the United States is confronting the growth in proliferation of WMDs, the emergence of rogue nations, and the rise of international terrorism. Each of these threats may require pre-emptive action best undertaken by the President and approved by Congress only afterward. Take the threat posed by the Al Qaeda terrorist organization. Terrorist attacks are more difficult to detect and prevent than conventional ones. Terrorists blend into civilian populations and use the channels of open societies to transport personnel, material, and money. Although terrorists generally have no territory or regular armed forces from which to detect signs of an impending attack, WMDs allow them to inflict devastation that once could have been achievable only by a nation-state. To defend itself from this threat, the United States may have to use force earlier and more often than when nation-states generated the primary threats to US national security. The executive branch needs the flexibility to act quickly, possibly in situations wherein congressional consent cannot be obtained in time to act on the intelligence.By acting earlier, the executive branch might also be able to engage in a more limited, more precisely targeted, use of force. Similarly, the least dangerous way to prevent rogue nations from acquiring WMDs may depend on secret intelligence gathering and covert action rather than open military intervention. Delay for a congressional debate could render useless any time-critical intelligence or windows of opportunity.The Constitution creates a presidency that is uniquely structured to act forcefully and independently to repel serious threats to the nation. Instead of specifying a legalistic process to begin war, the Framers wisely created a fluid political process in which legislators would use their appropriations power to control war. As the United States confronts terrorism, rogue nations, and WMD proliferation, we should look skeptically at claims that radical changes in the way we make war would solve our problems, even those stemming from poor judgment, unforeseen circumstances, and bad luck.