Obama's Enforcer (6 page)

As former attorney general Edwin Meese and former OLC lawyer Todd Gaziano (who served in OLC under three different presidents, both Republican and Democratic) said, President Obama's actions were “a breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress.” It was “constitutional abuse of a high order.”
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As a former OLC lawyer, Gaziano is even harsher than Judge McConnell, noting that Seitz's opinion “makes claims that are demonstrably false and is at times, frankly embarrassing.” Not only does the opinion fail to prove that Obama's “unprecedented act was constitutional,” but it “raises further questions about the legal advice process and the competence of those involved” in preparing it at OLC.
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Gaziano says he actually laughed at an argument that Seitz makes on pages 1 and 17 of her opinion, when she says that to defeat the president's recess appointment power, the “Senate may choose to remain continuously in session.” In other words, under OLC's new opinion, senators apparently have to “remain in their seat in the Senate chamber at all times” or “at least sleep in their offices, or within range of a 15-minute quorum call.”
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Otherwise, the president apparently has the unilateral authority to make recess appointments anytime there aren't enough senators in the Senate chamber.

Seitz nonchalantly issued an opinion disregarding the serious and substantial legal questions involved and ignoring “90 years of historical practice,” making conclusions “unsupported in law or the Constitution” according to Senator Chuck Grassley (R-IA).
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It was clear that Seitz's opinion, delivered after the president had already acted, was simply written to give Obama political cover and did not provide an objective, professional assessment of the constitutionality of the president's actions.

Holder has effectively eliminated OLC's long and storied role as the office within the Justice Department that has always been willing to question the legality and constitutionality of the actions of the attorney general and the president, as it did over President Bush's warrantless surveillance program, something that almost no one else was willing to do. This eliminated one of the few checks on the president's authority within the executive branch.

As Holder's debasement of OLC demonstrates, his tenure as attorney general has been marked by a dangerous push to legitimize a vast expansion of the power of the federal government that endangers the liberty and freedom of Americans. He has taken such extreme positions on legal and constitutional issues before the Supreme Court that the Justice Department has uncharacteristically lost numerous cases before the U.S. Supreme Court. Historically, the Solicitor General normally wins about 70 percent of the Justice Department's cases; yet in the 2012–2013 term, the department won only about a third of its cases before the Supreme Court. The same thing happened in the prior term—the government lost more cases than it won.

Even more unusual, and further evidence of the outlandish legal opinions he has advanced, is that since January 2012, the Supreme Court has ruled against Holder
unanimously
nine times. So even the liberal justices on the Court, including the two justices appointed by President Barack Obama, Elena Kagan and Sonia Sotomayor, have disagreed with Holder's positions. As George Mason University law professor Ilya Somin says, “when the administration loses significant cases in unanimous decisions and cannot even hold the votes of its own appointees . . . it is an indication that they adopted such an extreme position on the scope of federal power that even generally sympathetic judges could not even support it.”
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Those decisions are very revealing about the views of the administration and Eric Holder: it is one of unchecked federal power on immigration and environmental issues, on presidential prerogatives, and the taking of private property by the government; hostility to First Amendment freedoms that don't meet the politically correct norms; and disregard of Fourth Amendment protections against warrantless government intrusion. They are views that should alarm all Americans regardless of their political views, political party affiliations, or background.

The overt hostility to religion, particularly the Christian religion, that the Civil Rights Division has shown, was graphically illustrated by Justice in its argument in
Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC
,
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which dealt with whether antidiscrimination laws applied to church employees. In that case, Holder's lawyers claimed that the federal government had the right to, as the Supreme Court termed it, “interfere” in a church's employment decisions on the hiring and firing of its ministers and religious teachers. The justices of the court were astounded at the arguments being made by Justice that churches had no more protected rights than private clubs and that the Free Exercise Clause and Establishment Clause of the First Amendment, which provide religious freedom and bar the government from dictating religious practices, did not shield religious institutions from the government.

The Court unanimously told the Justice Department that it could not “accept the remarkable view that the Religion Clauses have nothing to say about a religious organization's freedom to select its own ministers.” The Justice Department was pushing a view of the First Amendment that would allow the government to interfere “with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” But the radical position the government took in the case should come as no surprise since one of the principal authors of the brief filed with the Supreme Court was a relatively recent Justice hire: Aaron D. Schuham, formerly of Barry Lynn's Americans United for Separation of Church and State.

In another case it lost nine to nothing,
Sackett v. EPA
, the Justice Department tried to prevent a family from defending itself and contesting a ludicrous order from EPA bureaucrats.
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The Sacketts owned a small residential lot in Bonner County, Idaho, that was separated from Priest Lake by several other built-on lots. Before beginning construction of their new home, the Sacketts filled in part of their lot with dirt and rock. The Environmental Protection Agency issued an order to the Sacketts under the Clean Water Act making the claim that their lot was a “wetland” and their actions violated the prohibition against “the discharge of any pollutant” into “navigable waters.” The EPA directed them to cease construction, “restore” the lot, and give the EPA access to it. Failure to comply with this administrative order would subject the Sacketts to
a fine of up to $75,000 a day
!

The Sacketts were forced to sue the EPA in federal court after this out-of-control federal agency refused to give them an administrative hearing to contest the order. But the Justice Department actually argued that the Sacketts had no right to go to court to contest the order! Justice claimed the Sacketts would only be able to contest the order when the EPA filed a lawsuit against them for noncompliance. As Senator Ted Cruz says, “DOJ effectively wanted to put the Sacketts into a Catch-22: either the Sacketts complied with the EPA order or they faced fines of up to $75,000 per day while waiting for EPA to sue.”
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The Supreme Court threw out the Justice Department's outrageous claim that would have deprived the Sacketts of basic due process and access to the courts to contest the EPA's order. The Court disagreed with DOJ's claim that the Sacketts could not initiate a lawsuit but instead would have to wait for the EPA “to drop the hammer” while accruing “$75,000 in potential liability” every day. Contrary to the Department's view, the Court ruled that the Clean Water Act was not “designed to enable the strong-arming of regulated parties into ‘voluntary compliance' without the opportunity for judicial review.”

As Paul Larkin, a former Justice Department lawyer who argued numerous cases before the Supreme Court says, the “Sacketts are not Fortune 500 companies running factories that daily pour out thousands of gallons of RBS (the acronym for what in the trade is known as Really Bad S#*t) into a river used downstream for drinking water; the Sacketts are private parties who want to build a home on their private property in a partially completed subdivision.”
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Yet Eric Holder unleashed the might of the Justice Department against them to deny their day in court.

While the collection by the National Security Agency of Americans' telephone and Internet records got a great deal of publicity and raised great concern in 2013, in a little-noticed case, Holder's position also posed a serious threat to the privacy of Americans. In
U.S. v. Jones
, the Justice Department essentially tried to convince the Supreme Court that the Fourth Amendment's protections against search and seizure should not prevent the government from tracking any American at any time without any reason.
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Justice argued that the police should be able to attach a GPS device to your car without a search warrant or even any reason to believe you committed a crime. Fortunately for those who fear the ever-growing power of the federal government, particularly its abuse of new technology, all nine justices agreed that the Fourth Amendment prevents the government from attaching a GPS to your car without getting a warrant. As the author of the unanimous opinion, Justice Antonin Scalia, said, there was no doubt that the type of “physical intrusion” that occurred when FBI agents attached a GPS to a car sitting in a public parking lot “would have been considered a ‘search' within the meaning of the Fourth Amendment when it was adopted.”

Even Justice Sotomayor, President Obama's own nominee to the Court, agreed that the government had invaded “privacy interests long afforded, and undoubtedly entitled to, Fourth Amendment protection.” But Eric Holder wanted to ignore the Bill of Rights and believed that his agents should be able to track all of your movements in public by attaching a GPS device to your car without permission from a judge. This is a frightening view of government power enhanced by new surveillance technology that would have directly threatened our liberty. Fortunately, Eric Holder's view did not prevail.

The Supreme Court also ruled against Holder unanimously in:

•   
Arkansas Fish & Game Commission v. U.S.
,
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a case in which the Justice Department argued that the U.S. Army Corps of Engineers could temporarily flood and thus destroy the property of landowners (18 million board feet of timber) without having to pay any compensation; Justice Ruth Bader Ginsburg, one of the most liberal members of the Court, wrote an opinion tossing out the Justice Department's argument that the Takings Clause of the Fifth Amendment, which requires the government to provide fair compensation when it takes property for public uses, did not apply to the deliberate and planned flooding caused by the government. If Holder had been successful, the government “would have the ability to tamper with a private citizen's property without paying just compensation.”
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•   
Gabelli v. SEC
,
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in which the Justice Department claimed that the government should be able to prosecute individuals for violations of the law that occurred years or even decades ago, despite the five-year statute of limitations; such statutes of limitations are imposed by Congress because as the Supreme Court pointed out, they “promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” They are “vital to the welfare of society” and “even wrongdoers are entitled to assume that their sins may be forgotten.” In fact, given the heavy penalties the government can impose in its prosecutions, it “would be utterly repugnant to the genius of our laws” if such prosecutions could “be brought at any distance of time.” The Supreme Court dismissed Holder's argument that the government should be able to in essence ignore a statutory limitation and prosecute cases whenever it “discovers” the problem.

•   
Arizona v. U.S
.,
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in which the Court ruled against the Justice Department's claim that President Obama's policy choices should trump state law. The Court did find that three provisions of Arizona's controversial immigration law were preempted by federal immigration law. But Holder lost unanimously on the provision of Arizona's law that he and President Obama had publicly attacked the most vociferously: a provision that requires state law enforcement officials to check on the immigration status of individuals they arrest, stop, or detain if they have a reasonable suspicion that the person is in the country illegally. Holder argued that responding to such inquiries, despite a federal law that
requires
the federal government to respond to requests for immigration status from state officials,
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would interfere with President Obama's immigration enforcement (or in this case nonenforcement) priorities—which is not to pick up illegal aliens detained by local authorities. This was really a breathtaking argument: Justice was claiming that the president has the ability to override state laws based on the whims of the executive branch. As Justice Alito said, the government's claim that Arizona's provision was “pre-empted, not by any federal statute or regulations, but simply by the Executive's current enforcement policy is an astounding assertion of federal executive power that the Court rightly rejects.”

And three other similar unanimous cases where the Supreme Court ruled against the government: one in which the justices rejected the Justice Department's arguments that the Internal Revenue Service could double-tax the income of a company based on a foreign government's characterization of a tax (a clear effort to bend U.S. law to collect more taxes);
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another that a property owner couldn't defend himself against a fine imposed against him but had to pay the fine first and then sue for compensation;
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and last, the position that a criminal law banning extortion as it has been understood in American and English law tradition for centuries should be expanded to include attempts to obtain not just money, but intangible benefits like a lawyer's “disinterested legal advice,” an argument the Supreme Court said sounded “absurd, because it is.”
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