Attorney General Eric Holder couldn’t explain the constitutional basis for executive orders such as President Obama’s delay of the employer mandate because he hasn’t read the legal analysis — or at least, hasn’t seen it in a long time.
“I’ll be honest with you, I have not seen — I don’t remember looking at or having seen the analysis in some time, so I’m not sure where along the spectrum that would come,” Holder replied when Sen. Mike Lee, R-Utah, asked him to explain the nature of Obama’s constitutional power to delay the mandate.
Lee had based his question on a standard legal test, first described by Supreme Court Justice Robert Jackson, who said the president’s authority to issue executive orders is strongest when he does so with the backing of Congress (category one), more dubious when he issues an order pertaining to a topic on which Congress has not passed a law (category two), and weakest when the executive order is “incompatible with a congressional command” (category three), to use Lee’s paraphrase.
Holder assured Lee that Obama’s team accounts for Jackson’s three-part analysis, but said he couldn’t use that test to explain in any detail what kind of authority the president wielded when he delayed the employer mandate.
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