Well, he doesn’t, actually. But Senator Mike Lee did a good job of trying to pin down Attorney General Eric Holder as to the constitutional basis of some of President Obama’s executive orders, particularly his deferral of the employer mandate under Obamacare. As he so often does, Holder bobbed and weaved without ever articulating a constitutional rationale. In my opinion, there is none.
Regrettably, in my opinion, Lee couched some of his questions in terms of Justice Jackson’s three-tier analysis of presidential powers, which I think is plainly wrong, but nevertheless has sometimes been used by the courts. Still, it is an effective job by Lee:
This is a very serious matter. For a president to issue orders for which he has no constitutional authority is the gravest possible abuse of his office. And Holder’s assurance that President Obama prefers to “work with Congress,” and only issues executive orders when he can’t get his way by “working with Congress,” is itself outrageous. Congress has the power to enact legislation; the president does not. If Congress chooses not to enact a law that the president wants, that does not empower the president to legislate via executive order.
Mike Lee, by the way, is a first-rate legal talent. At one point in their exchange, Holder expresses admiration for Lee’s abilities and refers to him as his father’s son. Lee’s father, Rex Lee, was an Assistant Attorney General in the Ford administration, Solicitor General in the Reagan administration, and Dean of the Reuben Clark Law School at BYU. Mike Lee clerked for Justice Alito on the Supreme Court and had a distinguished career in private practice and in state government before entering the Senate.