Is Obamacare unconstitutional?
Michael McConnell, a former judge for the Tenth Circuit Court of Appeals, wrote a piece in the WSJ yesterday about Barack Obama choosing not to enforce existing law because it is inconvenient:
President Obama’s decision last week to suspend the employer mandate of the Affordable Care Act may be welcome relief to businesses affected by this provision, but it raises grave concerns about his understanding of the role of the executive in our system of government.
Article II, Section 3, of the Constitution states that the president “shall take Care that the Laws be faithfully executed.” This is a duty, not a discretionary power. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.
This matter—the limits of executive power—has deep historical roots. During the period of royal absolutism, English monarchs asserted a right to dispense with parliamentary statutes they disliked. King James II’s use of the prerogative was a key grievance that lead to the Glorious Revolution of 1688. The very first provision of the English Bill of Rights of 1689—the most important precursor to the U.S. Constitution—declared that “the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.”
To make sure that American presidents could not resurrect a similar prerogative, the Framers of the Constitution made the faithful enforcement of the law a constitutional duty.
The President is not free to “refuse to enforce a statute he opposes for policy reasons.”
McConnell makes an argument that I have been makes:
Democrats too may acquiesce in Mr. Obama’s action, as they have his other aggressive assertions of executive power. Yet what will they say when a Republican president decides that the tax rate on capital gains is a drag on economic growth and instructs the IRS not to enforce it?
This establishes an ominous precedent:
Of all the stretches of executive power Americans have seen in the past few years, the president’s unilateral suspension of statutes may have the most disturbing long-term effects. As the Supreme Court said long ago (Kendall v. United States, 1838), allowing the president to refuse to enforce statutes passed by Congress “would be clothing the president with a power to control the legislation of congress, and paralyze the administration of justice.”
Iowa Republican Rep. Steve King believes that Obama’s interfering with the law is illegal:
In June 2012, “Obama refused to enforce current immigration law-very bad,” he said in a June 3 tweet. “Now, he refuses to enforce his own law… The law is specific & must go into effect day one of 2014,” he said.
“Only lawful alternative is for Obama to ask Congress 2 fix.”
Let us revisit words from democrats about this sort of activity:
“If the president is going to have the power to nullify all or part of a statute, it should only be through veto authority that the president has authorized and can reject — rather than through a unilateral action taken outside the structures of our democracy.”
“…the President consistently shows a casual disregard for the rights of Congress and the courts to make and interpret the law. This hearing is one step toward reclaiming our responsibilities, and I commend Senator Specter for his leadership on this issue.”
And how about these thoughts?
Only then will we see if the President will seek to create a gloss that Congress did not intend, or modify a provision of law more to his liking, or declare some provision of law something he and his administration will not enforce. That is wrong. That is the opposite of the rule of law. And no one–not even the President–is above the law.
He does not have the power to issue a decree that he will pick and choose which provisions of laws to follow in statements issued after Congress passes a law. What this President is doing is wrong.
The author of those words?
Sen. Patrick Leahy (D-VT), 2006
Obama hasn’t even bothered with a signing statement. He’s just going to ignore the law.
The President may choose not to enforce laws he truly believes are “palpably and demonstrably” unconstitutional. May we presume Obamacare to be unconstitutional? It is the only remedy available to Obama in order to ignore existing law.
If not- if the President can ignore the law with impunity, why can we not do the same?