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Judiciary Chairman Unleashes on Holder for ‘Partisan’ Ignorance of Constitution

With a scathing roll call of Eric Holder's sins, Lamar Smith paves the way for the attorney general's upcoming appearance before his committee.

by
Bridget Johnson

Bio

April 30, 2012 - 12:10 pm

The chairman of the House Judiciary Committee launched a scathing attack on the Department of Justice today with a report outlining how Attorney General Eric Holder’s agency is “ignoring the Constitution to impose a partisan agenda.”

“The pattern of pushing partisan ideology rather than neutrally enforcing the law began nearly as soon as the Administration took office and has continued unabated since,” the report from Rep. Lamar Smith states.

The Texas Republican said that under the Obama administration, the Justice Department “has become more partisan than ever.”

Smith has called Holder to testify before the committee on June 7 to answer for that partisanship.

“The Obama administration has ignored the constitutional balance of power between co-equal branches of government and blocked investigations of its actions. When the Administration doesn’t like a law, they refuse to enforce it. And if the Senate’s constitutional authority to approve political appointees gets in their way, the Administration ignores the Constitution,” Smith said.

“All government officials are bound by the limits of the Constitution and the rule of law, including the President and the Attorney General,” the chairman added.

The report delves into several high-profile examples of the DoJ’s quest to “impose the Administration’s partisan agenda on the American people.”

The first of these: Operation Fast and Furious.

“Since the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ (ATF) Operation Fast and Furious first became public in January, 2011, the Department has responded with a consistent focus on avoiding responsibility rather than addressing institutional flaws,” the report states.

Smith’s chairman’s report calls out Holder for his May 3, 2011, testimony before the committee in which he said that he “probably heard about Fast and Furious for the first time over the last few weeks.”

Months before the hearing, though, Sen. Chuck Grassley (R-Iowa) had personally handed Holder a copy of his Jan. 27, 2011, letter regarding the matter, and documents later revealed by the DoJ that fall included memos to Holder with summaries of the gun-walking scandal.

Holder denied giving untruthful testimony, but under pressure from lawmakers eventually said he’d meant to say “a few months” before the committee.

The Department of Justice responded to a CBS News Freedom of Information Act request on Fast and Furious last week by sending mostly blank pages to the news network.

Smith’s report also faults the DoJ for “rushing to court to oppose state laws aimed at improving immigration enforcement while ignoring sanctuary cities and other policies which explicitly violate federal immigration law,” knocking its legal action against Arizona’s SB1070.

“Even if the Department’s argument were not entirely frivolous, it is a much weaker case than could be mounted against states like New York, Massachusetts, and Illinois that openly violate their duty to support federal immigration enforcement,” it says. “While Arizona’s law complements and strengthens federal immigration policy, the laws of these states and some of the cities within them explicitly violate the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996—yet DOJ refuses to take any action against them.”

The report asserts that since the DoJ has not brought a single court action to block sanctuary city policies or tuition breaks for illegal immigrants, the choice to focus limited resources on strained, weaker arguments shows the department’s bias.

“The glaring inconsistency can best be explained by highly partisan decision making influencing which cases to pursue,” it says.

“The Justice Department claims to be acting to protect the interests of Congress, arguing that except in narrow circumstances only Congress can legislate immigration enforcement. In truth, the Department ignores Congress except when it can help the Administration achieve its partisan goals, in this case its fiercely anti-enforcement immigration agenda.”

Smith then goes after Holder & Co. for challenging voter ID laws, asserting that it’s due to partisan bias that the Justice Department puts taxpayer dollars to “waste” with its challenges.

“The Justice Department claims that in South Carolina minorities are 20 percent more likely than whites to lack photo ID,” the report states. “This sounds significant until you examine the original data. 90% of minorities have photo IDs compared with 91.6% of whites. The Department’s presentation is mathematically true (because 10% is technically 20 percent more than 8.4%) but it masks that in reality, the Department is battling over a difference of less than 2%.”

The report faults the DoJ for blocking congressional inquiries, including oversight requests — five from the Judiciary Committee alone since July 2011 — probing just how deep of a role Supreme Court Justice Elena Kagan had in shaping ObamaCare before her appointment to the court.

The Justice Department has claimed that the Judiciary Committee — studying her background to ensure that federal law governing recusals is adequate — “has no legitimate legislative interest in the material,” according to the chairman’s report.

“The Administration’s lack of cooperation only heightens concerns that they have something to hide,” the report states. “Unfortunately, the Administration’s stonewalling of Congress could result in an unconstitutional law being upheld.”

Smith proceeds to take on the DoJ for refusing to stand behind the Defense of Marriage Act. Holder informed Congress on Feb. 23, 2011, that his department would no longer defend DOMA in court, arguing that it violated the constitutional guarantee of equal protection.

“The unprecedented nature of the Attorney General’s arguments and the evasion of accountability represented by continuing to enforce the law while not defending it combine to support the inference that the Administration’s stance is based on its partisan agenda rather than on a sincere analysis of the Constitution and, as such, the Administration’s non-defense of the Defense of Marriage Act is a usurpation of Congress’s legislative function,” the report states.

Finally, the chairman goes after Justice for turning a blind eye to constitutional limits of President Obama’s recess appointment power.

Obama sparked fury in Congress with three recess appointments to the National Labor Relations Board and another to the Consumer Financial Protection Bureau on Jan. 4. The Senate was not technically in recess at the time, but in pro forma sessions with no business to be conducted — which could be reversed if senators were asked to conduct any business — as agreed by both parties.

Smith linked the appointment to bad advice given to Obama by Justice Department counsel, who found that the President “has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.”

“The invocation by the President of the recess appointment power when the Senate was not in recess was an unconstitutional evasion of the Senate’s power of advice and consent,” the report said. “It encroached upon the Senate’s constitutional prerogatives and aggrandized power to the President.”

After a roll call of Justice Department sins, the chairman concludes that “the Constitution has not been guarded with care.”

“[Holder] promised that under his leadership, the Department of Justice would be free from partisanship,” Smith’s report states. “He testified that in his tenure ‘law enforcement decisions must be untainted by partisanship.’”

“The reality has been different from the promise.”

Bridget Johnson is a veteran journalist whose news articles and opinion columns have run in dozens of news outlets across the globe. Bridget first came to Washington to be online editor at The Hill, where she wrote The World from The Hill column on foreign policy. Previously she was an opinion writer and editorial board member at the Rocky Mountain News and nation/world news columnist at the Los Angeles Daily News. She is an NPR contributor and has contributed to USA Today, The Wall Street Journal, National Review Online, Politico and more, and has myriad television and radio credits as a commentator. Bridget is Washington Editor for PJ Media.
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