WASHINGTON — In the courts of law and public opinion, congressional Republicans increasingly accuse President Barack Obama of exceeding his constitutional authority for the benefit of special interests, most recently by delaying a requirement for businesses to provide health care for their workers.
In one instance, Senate Republicans formally backed a lawsuit challenging the president’s appointment of three members of the National Labor Relations Board without confirmation. The Supreme Court has agreed to review a ruling in the case, which found that Obama overstepped his bounds.
Most recently, the White House’s decision to postpone a key part of the president’s health care law drew rhetorical denunciations Tuesday from Republicans who, ironically, want to see the law repealed in its entirety.
Senate Republican leader Mitch McConnell of Kentucky said the action was part of a pattern of “indifference to the rule of law on the part of this administration. ... He did it with immigration. He did it with welfare work requirements. And he did it with the NLRB when he took it upon himself to tell another branch of government when it was in recess.
“And now he’s doing it again with his own signature health care law,” said McConnell, who is seeking re-election next year in a state where Obama is unpopular.
White House press secretary Jay Carney had no comment on McConnell’s complaint that the administration is indifferent to the rule of law. The White House disputes each allegation in turn, citing specific legal authority for the president’s actions, or saying the assertion was factually incorrect.
Oddly enough, on one particularly incendiary issue, Obama so far has rejected suggestions that he has authority to continue government borrowing without a vote by Congress to raise the debt ceiling. To switch course would inevitably invite a lawsuit.
Whatever the merits of the Republican claims, they sometimes include a dose of politics of the sort they accuse Obama of playing.
Rep. Steve King, R-Iowa, threatened to sue when Obama announced several weeks before the 2012 election that he would stop deportation proceedings against many younger immigrants who are in the country illegally, so long as they went to college or served in the military. The move was widely viewed as a gesture to Hispanic voters, many of whom live in key battleground states.
A suit subsequently was filed by federal immigration enforcement agents, and King was not a party to it, although his office says it was the product of a meeting he called. King also used the issue to raise money for his own re-election to Congress last fall, emailing potential donors that Obama “refuses to enforce immigration laws.”
In addition to challenging Obama’s adherence to the rule of law, McConnell’s speech included a pre-emptive attack in case Democrats try to change Senate rules this summer and make it easier to confirm presidential appointees.
“I know Washington Democrats are getting a lot of pressure from big labor union bosses and other far-left elements of their base to do this,” the Kentucky Republican said. “These folks have told Democrats it’s time to pay up, and they don’t have much time for things like the democratic process or the rule of law.”
He spoke at about the same time House Democrats and union leaders held a news conference to pressure Republicans not to block confirmation for several appointments, including at the NLRB, which rules on collective bargaining disputes between employees and companies.
“Whatever it takes to get these nominees through, an up or down vote is what we want,” said Bill Samuel, the AFL-CIO’s legislative director. “That might very well include a change in the rules to make it impossible for the Republicans to filibuster the nominations.”
The lawsuit backed by Senate Republicans challenged Obama’s so-called recess appointments of three members of the NLRB.
The Constitution gives the president authority to make appointments without confirmation when the Senate is in recess. In the case at issue, Obama acted at a time Congress was away on an extended holiday break, but the Senate met every three days as part of an explicit strategy by Republicans to prevent such appointments.
Rejecting the administration’s arguments, a three-judge panel of the U.S. Court of Appeals in Washington, D.C., ruled that recess appointments can be made only during the once-a-year break between sessions of Congress, typically at the end of the year.
Two judges on the panel also ruled that to qualify for a recess appointment, a position must become vacant while the Senate is in recess.
Despite Republican allegations, administration officials cite specific legal authority for some of Obama’s actions.
The Treasury Department said the one-year waiver of the requirement for companies to provide health insurance announced last week was “an exercise of the administrative authority” granted by law when it comes to implementing new legislation like the health care act.
One official cited other recent examples of waivers under the same authority. A case in 2011 said aviation excise taxes that had lapsed and then been reinstated would not be applied for a three-week period ending the day Congress re-enacted them.
The other, from 2007, related to standards for penalties on income tax preparers, according to the official, who citing department regulations in speaking on condition of anonymity.
A year ago, when Obama announced the shift in immigration policy, Homeland Security Secretary Janet Napolitano cited “prosecutorial discretion.”
McConnell’s reference to welfare relates to a charge by Republicans that the administration proposed new rules to lessen the work requirements implemented as part of a 1996 overhaul of the program. The White House denies the proposal had that effect.
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