Selective Enforcement of the Law

Eric Holder’s speech on the enforcement of mandatory minimum sentences is the latest installment in a long line of ways the Obama administration has attempted to side step Congress. Holder asked the American Bar Association to use their prosecutorial discretion to reduce the frequency of filing charges that carry mandatory minimum sentences for non-violent drug crimes. This is a large diversion from the normal policy of prosecutors going for the highest provable offense.

This administrative “request” to not enforce certain laws based on policy priorities is not the first, nor is it the most troubling. When the Obama Administration decided to delay the employer mandate section of the Patient Protection and Affordable Care Act (PPACA), it was in direct conflict with the text of Section 1513(d) which states, “The Amendments made by this section shall apply to months beginning after December 31, 2013.” Shall is a word that carries some serious legal weight. It does not mean that the Administration will do its best or take it under advisement. It means that the provision is completely mandatory.

Presidential rewriting of the text of laws was found to be unconstitutional in 1998. In the U.S. Supreme Court case Clinton v. New York, the court found that the Line Item Veto Act of 1996 was unconstitutional. The court said, “If this Act were valid, it would authorize the President to create a law whose text was not voted on by either House or presented to the President for signature.” Basically, it violates the basic separation of powers afforded under the constitution. The president cannot create a law. That is exclusively the power of congress.

This separation of power has become increasingly blurred and sometimes abused over the years. A president has a wide discretion on how to run his administrative agencies. This is how Obama in effect refused to enforce the immigration laws when it came to proceedings against 800,000 illegal immigrants who came to the U.S. before age 16, lived here at least five years, etc. He placed the enforcement of said law so low on the priority list, that it had the effect of no one ever “getting around” to it. The ability to set priorities and manage the day to day activities of administrative agencies is well within the power of the President.

The line of separation gets even fuzzier when you consider the “unitary executive theory” used by President George W. Bush and increasingly embraced by the Obama administration. Under this theory, executive power is exclusively reserved to the president. Therefore, any attempt to limit the president’s control over the executive branch is unconstitutional. The theory claims the executive has full authority over foreign relations, military affairs, national security, intelligence policy, presidential appointment, and full supervisory powers over the agencies of the executive branch.

Presidential signing statements used extensively by both Bush and Obama implement this theory and are texts explaining the president’s view on legislation he is signing into law. They clarify any ambiguity in the law and identify any parts of the bill that the president believes to be unconstitutional. Some argue that Bush used these statements in similar ways to the line item veto, ruled unconstitutional in Clinton v. New York. Under the Bush administration, parts of laws that the president found unconstitutional under the framework of unitary executive theory were ignored.

The Obama administration has taken this further in two ways. First, instead of only using these legal justifications on laws being signed in by the current administration, the Obama administration has made rulings on laws signed under previous administrations, such as the Defense of Marriage Act (DOMA). President Obama instructed the Department of Justice to stop defending section 3 of DOMA because they deemed it unconstitutional. Secondly, the Obama administration seems to be using this selective enforcement for pure policy reasons, without any unconstitutional justification. This can be seen in the unilateral administrative changes to PPACA implementation.

Perhaps the best example of selective enforcement of the law by both the Bush and Obama administrations is the GM and Chrysler bailouts. While the House of Representatives voted in late 2008 to provide a $14 billion bailout, the Senate voted down the legislation. Then, acting unilaterally, the Bush administration extended $17.4 billion in Troubled Assets Relief Program (TARP) funds to the companies. Only, TARP funds were statutorily reserved for “financial institutions”, which the car companies definitely were not. The legality of this use was never tested in court, however, and no substantial defense of the legality was ever posited.

Then in 2009, under the Obama administration, an unprecedented combination of bankruptcy proceedings and bailout unfolded. Chrysler had experienced financing problems before the crisis hit, leaving them with a large share of secured debt. Secured debt gets “absolute priority” in bankruptcy proceedings, thus increasing the willingness of people to lend it to a risky venture. This time, however, creditors with secured debt got $0.29 on the dollar while pension plans for the United Auto Workers received over $0.40 on the dollar. On top of this, GM’s secured creditors were treated much more favorably than Chryslers, despite being functionally indistinguishable.

With Obama’s ever present rhetoric about the ineptitude of Congress, this flouting of the law is even more troubling. In one speech Obama said, “So where I can act on my own, I’m going to act on my own. I won’t wait for Congress.” In another speech he stated, “We’re going to do everything we can, with or without Congress.” Judging by his track record, he has a very broad definition of what he can do without Congress. Unless Congress, the Judiciary, and the people of America push back, the position of president will continue to accrue power antithetical to the spirit of the Constitution.

Additional Resources

The Wall Street Journal, Obama’s Creeping Authoritarianism:

The Wall Street Journal, Obama Suspends the Law:

The Wall Street Journal, Holder Calls for Big Changes to Justice System:

The Guardian, Tennessee Judge Changes Boy’s Name from Messiah to Martin:

Time, Eric Holder Takes the Fight for Voting Rights to Texas:

Cornell University Law School, Clinton v. City of New York:

National Affairs, The Auto Bailout and the Rule of Law:

The New York Times, Legal Group Says Bush Undermines Law by Ignoring Select Parts of Bills:

ABC News, President Obama Instructs Justice Department to Stop Defending Defense of Marriage Act:


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