Email #312: “the very core of our system of government”?

You praised President Trump’s elimination of Deferred Action for Childhood Arrivals because you said it was an “unlawfully-contrived program.” You said President Obama had “used his ‘pen and phone’ to overstep his authority and unilaterally rewrite our nation’s laws” in a manner that was “wholly unconstitutional” and compromised “the rule of law.”

Obama created DACA in 2012 after the nearly identical DREAM Act failed to pass in the Senate. The administration stopped deporting illegal immigrants who matched the proposed DREAM Act criteria anyway. You responded with the Preventing Executive Overreach on Immigration Act, saying: “President Obama declared war against the Constitution by changing our immigration laws on his own and Congress today began its fight against this unprecedented power grab.”

When the courts blocked Obama’s immigration order, you applauded: “The case of United States v. Texas is fundamentally about preserving the separation of powers and its outcome will have drastic implications for our Republic… I am hopeful that the Supreme Court will stop President Obama’s lawlessness so that we protect the Constitution and the intent of the Founding Fathers that the legislative branch, which reflects the will of and is accountable to the American people, makes the laws, not the President.” Due to the death of Justice Scalia, the Court deadlocked in a 4-4 decision.

But you demonstrated your continuing commitment to this issue by creating the House Judiciary Committee’s Task Force on Executive Overreach last January, correctly noting that “presidents of both parties have aggrandized their power and usurped Congress to legislate from the Oval Office. This is not a Republican or Democratic issue; it’s an American issue and touches the very core of our system of government.” You said the Task Force “will study this troubling trend and also look for solutions to prevent the executive branch from exceeding its constitutional authority. The separation of powers and its checks and balances are designed to protect individual liberty and we must ensure that it is preserved for future generations.”

And now President Trump has given the Task Force a lot more to study.

The President tweeted last week: “Since Congress can’t get its act together on HealthCare, I will be using the power of the pen to give great HealthCare to many people – FAST.” He then used that power to issue executive orders that violate provisions of the Affordable Care Act. He said during the signing: “I just keep hearing repeal-replace, repeal-replace. Well, we’re starting that process.”

But as you have so forcefully argued in the past, no President has the power to create legislation and no President has the power to alter or repeal legislation once it’s been created by Congress–including in this case the Affordable Care Act. By the standards you applied to President Obama, President Trump’s “lawlessness” and “power grab” is usurping Congress too.

Fox News reported: “President Donald Trump is taking his first steps to fulfill his vow to dismantle Obamacare on Thursday, signing an executive order that … would allow consumers to buy short-term policies, which don’t have to comply with Obamacare’s protections for those with pre-existing conditions.”

The Wall Street Journal says the executive orders “initiate the unwinding of the Affordable Care Act, paving the way for sweeping changes to health-insurance regulations by instructing agencies to allow the sale of less-comprehensive health plans to expand.” The newspaper also said the President was “using his authority to accomplish some of what Republicans failed to achieve with their stalled congressional health-care overhaul.”

President Trump’s “Obamacare relief” orders follow the same steps and executive abuses that you so vigilantly opposed under President Obama. After his party failed to pass the legislation he wanted, the President is using his pen to overstep his authority and unilaterally rewrite our nation’s healthcare laws. According to you past arguments, President Trump’s directives to bypass ACA provisions and create unlawfully-contrived healthcare associations are wholly unconstitutional and compromise the rule of law.

The only difference is political. You opposed the DREAM Act, and so it was simple for you to oppose DACA. But you supported ACA repeal bills, and so you agree with the goals of the President’s executive orders. While I empathize with the difficulty and irony of your position, anything short of a condemnation of President Trump with the same vigilance and vigour that you condemned President Obama’s “war against the Constitution” will expose you as an unprincipled hypocrite.

As much as I have disagreed with so many of your past actions, I am sincerely hopeful that you will rise to this situation and place the Constitution before your political party. As you said, the very core of our system of government is at stake.

Email #129: “ignore the Constitution”?

You accused President Obama of using “his pen and phone to stretch his authority to implement policies that Congress has refused to enact.”

You said that President Obama showed “time and again throughout his time in office that he is all-too-willing to overstep his authority and ignore the Constitution to achieve his policy goals.”

You said that your House Judiciary Committee “has a duty to conduct vigorous oversight” of the executive branch, ensuring that it is “bound by its constitutional limits.”

“The Constitution is clear,” you said: “it is the role of Congress to make all laws, the Judiciary to interpret the laws, and the President to enforce the laws.”

Given your outspoken condemnation of President Obama on these Constitutional matters, why are you not applying the same vigor in your oversight of the Trump administration? Two of the President’s executive orders require the hiring of 5,000 new border patrol agents and 10,000 new immigration officers, for a combined annual cost of $4.8 billion. Another orders the construction of his promised “Great Wall” along the U.S.-Mexico border, allocating unspecified “Federal funds for the planning, designing, and constructing of a physical wall along the southern border,” for a likely $25 billion.

But only Congress has the power to spend taxpayer money. No President can spend money that Congress hasn’t authorized. Trump, like Obama and every President before them, can then only shift around dollars within budgetary line-items. And yet President Trump’s executive orders call for new spending not authorized by Congress.

When Obama signed executive orders, you and other members of the Republican party often accused him of violating the Constitution. So far President Trump has signed 19 executive orders, many of which require unauthorized spending. But I have yet to hear you even mildly suggest that the President might be “stretching” or “overstepping” his authority, let alone violating the Constitution.

Do your Constitutional standards vary according to which political party is in the White House? Is your guidepost the Constitution or just political convenience?

Email #56, Subject: who wrote the Muslim ban?

I just read that top staffers on your House Judiciary Committee drafted the President’s executive order for the Muslim ban. Since your Committee is in charge of immigration policy in the House, such coordination is on principle appropriate. Indeed, it is the President’s lack of consultation with other key government agencies that has added to the unnecessary chaos.

However, I also read that the White House did not coordinate with you personally. Is this true? You are the Chair of the House Judiciary Committee. Did your own staffers not inform you that they were taking orders from the White House? Did they not consult with their own Chair while drafting the executive order? Is it true that they instead coordinated only with the President’s nominee for Attorney General? Were you not even informed about what was happening? How is this possible? How can you have no authority over your own Committee?

You said “checking executive overreach” was one of your top priorities. And now the executive branch has commandeered your own staff who kept you ignorant of their controversial work. You are an elected member of Congress. Your staffers are not. Their job is to support Congress. At minimum they are supposed to be taking their orders from you and other members of the legislative branch, not from the executive branch. You assured me in a previous letter that there was no danger of President Trump abusing his authority because the Constitution divided power between the three branches of government. This division appears to have already broken down. One of the most influential Congressional committees is working directly for the White House while leaving their supposed boss completely out of the loop.

Even if you agree with the ban itself, the process behind it violates the principles of the Constitution that you have sworn to uphold. It is your duty as an elected Representative to act against this violation. You cannot put your personal policy preferences ahead of the Constitutional process itself.

Chris Gavaler