FOX "Fox News Sunday with Chris Wallace" - Transcript: Presidential Executive Orders

Interview

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WALLACE: President Obama this week defending the 24th time he's unilaterally change or delayed his health care law without going back to Congress. And many are now questioning whether the president is taking his executive authority too far.

Joining us from Utah, Republican Mike Lee, a member of the Senate Judiciary Committee, and here in Washington, California Congressman Xavier Becerra, chair of the House Democratic Caucus.

Senator Lee, let me start with you.

The Obama administration contends that it has broad authority under the tax code to implement laws in ways that will encourage compliance. Given that authority, doesn't President Obama have -- whether you like it or not -- the ability to keep changing ObamaCare?

LEE: Look, if that kind of broad regulatory mandate buried within the internal revenue code can authorize the president to do what he is purporting to do here, then there's almost no limit to his authority. We have a government of one. We have a super executive and super legislator vested in the president of the United States. As, of course, not what we have as any high school civics student can tell you.

The president knows this is wrong and it's not defensible. He is violating the Constitution. He is exercising power that doesn't belong to him. It belongs to the American people.

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WALLACE: Senator Lee, to questions about political -- presidents twiddling their thumbs. If you look at the first five years of the recent two-term presidents we have a graph on the screen, Obama, in fact, has used executive orders much less often than his predecessors going back to Reagan. And this is the question that Congressman Becerra raised, and I think it's a legitimate question for you, sir, if as a member of Congress you feel the president is doing something unconstitutional, you said that, violating the Constitution, why don't you take them to court?

LEE: OK. First of all, I said taking him to court. There are many instances, in which a president might violate the Constitution. But in which for a variety of practical reasons and some constitutional reasons, the courts might not end up exercising jurisdiction over that case. It's very difficult, for example, for someone to challenge in court the president's suspension of the employer mandate. It's difficult to identify the kind of plaintiff that would suffer the kind of injury, in fact, that's particularized to the plaintiff. So it has to be able to establish article three standing in court.

WALLACE: Can I ask you about that?

LEE: Answer the broader question.

WALLACE: May I just ask you about that. Because I know that that's the answer that you guys give. Well, it's hard to establish standing. And I'm not a lawyer. But it would seem to me that couldn't you say as a member of the Senate, hey, we passed this law. It said that the law will go into effect on December 31st, 2013 and the president has ignored our law so as a member of the Senate, I have standing to protest that.

LEE: Yeah, there are some who have suggested that there are others who have suggested and under the relevant Supreme Court president, it might be difficult for members of Congress even to establish standing in those circumstances. But on the broader question, Chris, of the fact that we have presidents in both parties using executive orders and that this president hasn't necessarily issued more executive orders than other presidents, I have got two responses to that. First, Chris, not all executive orders are equal. You have some executive orders that are plainly authorized by law, in which Congress has delegated the president to make these kinds of decisions. That's really not what we're talking about here. What we're talking about here, decisions like those involving the suspension of the employer mandate. That is not only not authorized by the statute, it's flatly inconsistent with what the statute says. Secondly, to the extent that presidents and both political parties have strayed from the law and have acted unilaterally outside their delegated authority from Congress and from the Constitution, that's wrong. And the fact that other presidents may have done it in the past, doesn't justify it now.

WALLACE: OK. Let me -- let me ...

LEE: We can't extend back and simply ignore this. We can't ignore the fact that we've got a president who is acting as if he's got a government of one simply because he can't always get exactly what he wants out of Congress.

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WALLACE: Senator Lee, does Congressman Becerra persuade you?

LEE: No, not at all. But this is a shameless act, a shameless power grab that is designed to help the president and his political party achieve a particular outcome in a partisan election. And that's wrong. Look, the Constitution doesn't give the president that power. His power belongs to the people. The people delegate that power to their senators and to their congressmen. They don't give it to the president to act unilaterally and there's a good reason for that. The whole reason why we have a constitution is to help prevent to protect us against the excessive concentration of power in the hands of the few or here in the case of the hands of one person.

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