OTR Interviews

Obama's 'year of action,' by any means necessary - Constitution be damned?

The White House and the president have promised to use every tool and stroke of his pen to make progress on his agenda, while the Supreme Court mulls a key challenge to his use of power


This is a rush transcript from "On the Record," January 14, 2014. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: President Obama getting ready to bulldoze Washington. His master plan now exposed. In an email blast to supporters today, White House senior advisor, Dan Pfeiffer, promises the president won't be waiting for Congress to act and will use every, yes, every executive tool available to get what he wants. Apparently, the years of action will be all about executive action.


BARACK OBAMA, PRESIDENT OF THE UNITED STATES: If Congress continues to stand only for dysfunction and delay, then I'm going to move ahead without them.

I'm going to do everything that I can do without Congress.

Whenever Congress refuses to act, Joe and I, we are going to ask.

Even without Congress -- with or without Congress, I'm going to act on my own.

I have got a pen, and I have got a phone, and I can use that pen to sign executive orders.


VAN SUSTEREN: Did President Obama miss the class about the three equal branches of government and the separate of powers?

Rush Limbaugh is not holding things back.


RUSH LIMBAUGH, RADIO TALK SHOW HOST: He can do executive orders to make things fair. He can do executive orders and executive actions to get rid of the unfairness. He is going to make this lousy country finally fair. He has got these Republicans that's standing his way, OK, I will just start writing executive orders. The hell with it, I'm going to finally make everything fair. Now, he might have a pen and he might have a phone, but what he does not have is the constitutional power to run this country like a dictator.


VAN SUSTEREN: Karl Rove joins us. Nice to see you, Karl.


VAN SUSTEREN: Rush Limbaugh says that the president doesn't have the power to run the country like a dictator. Is that what the president is doing through executive order or something else?

ROVE: I'm deeply troubled by the president's use of his executive authority and abuse of his executive authority. Look, a president does have strong executive authority, but the president, for example, has unilaterally decided not to take our drug laws regarding marijuana and enforce them. If a state decides it doesn't want to live by the federal law, the president is ignoring the federal law. Immigration, we looked at it during the Bush years at whether or not there was legal authority to exempt a class of people from enforcement of the law and concluded that there was absolutely no possibility of a president legally doing that. This president has suspended a part of the immigration law for a class of people. You can suspend the immigration law for individuals based on specific facts. But you can't do it for a class.

And we are seeing this time and time again. Look, on ObamaCare, we had those waivers in 2011 and 2012. We had a year delay of the employer mandate. Where was the authority to do that? They moved the dates for the sign-up and the payment. They have exemptions for certain union plans. They now say that the individual mandate, if you -- if your plan that you wanted to keep was taken away from you, you can declare a hardship and have a non-conforming plan. Where is the authority to do that?

VAN SUSTEREN: I think it's pretty fair to say that whatever Congress passed in terms of health care is not exactly what's being implemented right now.


VAN SUSTEREN: It's vastly different. And Congress, at least the Republicans are squawking a bit.

But I'm curious, where does that line does? Because the president does have executive authority. President Bush exercised it this time in his presidency at 198 times, President Obama, 167. But it's not really so much the number but what you do with it. And I'm also mindful that the Supreme Court, even yesterday, the liberal members seemed to be very disturbed at recess appointments because the Senate wasn't in recess.

ROVE: That to me is very interesting. You are right. Yesterday, the Supreme Court had a review of a D.C. court opinion regarding the president unilaterally deciding that the Senate, which declared that it was not in recess, was in recess. And thereby, allowed him to make appointments to the National Labor Relations Board that he couldn't get passed a Democrat Senate, they were so bad. So, again, look, a president has a certain authority as a president --

VAN SUSTEREN: This is sort of interesting --


ROVE: -- but it has to be statutory in nature. It has to be drawn from the statute. Where is the statute that says that the president can ignore the requirements of the law for a timely decision on the State Department on Keystone XL Pipeline? Let me give you another example. He has done this each and every year. Let's see if he does it this spring. Every March and April, the actuaries of Medicare produce a report. By law, since 1965, the requirement is, if they forecast that Medicare is going to have financial problems within a 15-year window, the president is required to present to the Congress a plan to bring it back into conformity and to fiscal health. President Obama has ignored this requirement in 2009, '10, '11, '12, and '13.

VAN SUSTEREN: Let me go back to the numbers. President Clinton, at this stage, 238 times executive orders to 167 to President Obama. But it's not necessarily a number but actually what you do.

ROVE: It's subject --


VAN SUSTEREN: It's subject --


ROVE: Where is the president declaring that authority --


VAN SUSTEREN: Are you saying that the president is exceeding his constitutional authority or are you saying you just don't like what he is doing?

ROVE: I think he is violating the law. He has exceeded his constitutional authority. Look, it's not only executive orders. That's only one standard here. He didn't issue an executive order to waive the employer mandate for a year. In July of 2012, they said we are going to delay, unilaterally delay the requirement for the -- and it was done by rule out of the Department of Health and Human Services. Look, it's not just -- a president does have executive authority. But their executive orders have to have a statutory base. And the president is doing things that are against his own -- the laws that he trumpets.

VAN SUSTEREN: Let me ask you about one other issue, Karl. And that's about the Tea Party. First, the Tea Party had to take on the IRS. Now they are taking on the FBI. That's because the FBI will reportedly not file any criminal charges over the IRS targeting scandal. According to the "Wall Street Journal," investigators did not find the kind of political bias or enemy hunting that would violate criminal law. The Tea Party though, of course, is absolutely furious.

One leader will go ON THE RECORD in just a few minutes.

But first, back to Karl. IRS not criminal according to the FBI?

ROVE: Well, not according to the FBI. That's not accurate. What's interesting to me is, read that story carefully. The FBI, first of all, does not have a habit of commenting on ongoing investigations. They just don't. You will notice in the "Wall Street Journal" piece, excellent piece of reporting, but it is law enforcement officials. They don't say officials at the bureau. They don't say FBI agents, the leaders of the FBI. They say law enforcement officials. That's broad enough to cover the U.S. attorney's office, the Department of Justice, the Department of Justice Criminal Division. So, you know, last week, literally, within the last week, I think five days ago, the new director of the FBI, Comey, said this is an ongoing investigation and it's important to us. I doubt that within a matter of days what he said was an important ongoing investigation has come to a conclusion. They will announce what they are going to do when they are done and maybe then they won't announce it.

VAN SUSTEREN: So is this a disgruntled leak --


ROVE: I don't know what is it. I think it's somebody trying to send a message to the FBI or somebody is trying to dampen down the temperature on this. But, look, we do know this. We know that Cleat Mitchell, who represents about a dozen of these groups that were targeted by the IRS, not a single one of those groups has been contacted. Jay Sekulow, who represents, I think, nearly 40-some oddities, most or virtually all of them have not been contacted. So, how do you conduct an investigation if you are not talking to the people who are -- who were abused by the IRS?

VAN SUSTEREN: Some people -- some of the Tea Party people have said because the woman who is the assigned prosecutor at DOJ has donated money to the Obama administration. I don't think Eric Holder can go around when he is trying to find a prosecutor to do the investigation and ask who he has been giving money to. I don't think he can do that. However, I am critical of the lawyer. The lawyer is bound by the code of professional responsibility and she wants to avoid the appearance of impropriety.

ROVE: Appearance, that's right.

VAN SUSTEREN: And what she has done, by taking on that responsibility -- and there are 10,000 lawyers there. She could have passed it to another one. She has set that investigation up to be poisoned. The people who don't like the result are going to say, whether fairly or unfairly, she should have taken her name out of that one.

ROVE: I agree with you. She gave $6,000 to the Obama campaign. That's more than just chump change. And the appearance of this -- look, this is an investigation. Particularly if the government ends up exonerating the IRS, you don't want questions raised about the impartiality of the government doing so.

VAN SUSTEREN: I think she has an affirmative obligation to -- I wouldn't have taken it, I mean, under those circumstances.

ROVE: I couldn't agree more. And the fact that the administration is blind to that says, that -- look, the president may have said that he, you know, was concerned about this, of course, it took him many, many months before he showed concern about it.


VAN SUSTEREN: -- two months later though.

ROVE: And then HE two months later says it's phony. Now we are learning exactly how phony they think it is, when they do not care about the sort of the basic fundamentals. Are we conducting this investigation in such a way that it will have confidence of the American people --


VAN SUSTEREN: And you should talk to the people who say they were wronged. They may have had phone conversations with the IRS that may advance the investigation somehow. But the fact that they have not is deeply disturbing. But as you said, the investigation is not over.

ROVE: The investigation is not over. And, again, this is another reason why -- look, the FBI, say what you will about them, they are thorough. And I can't believe that they would conduct an investigation of this issue without interviewing at least the lawyers of the groups, if not the groups themselves.

VAN SUSTEREN: Karl, always nice to see you.

ROVE: Thank you, Greta.