President Obama is taking a great deal of heat for the cancellations of millions of policies after he repeatedly told citizens that if you like your policy you could keep it. He recently apologized for what seems a classic bait and switch. However, Obama has now announced a fix that raises a more serious question in my mind. Most of us have become used to a relatively high level of dishonesty from our leaders in Congress as well as the White House. This blog has documented whoppers, even perjury, that results in little more than a shrug in today’s political system. However, the “fix” involves the President unilaterally changing that scope and timing of a law. This has been a recurring concern with this President and the rise of the “Imperial Presidency” that he has established within ever-expanding executive powers. I will be discussing this issue today on CNN.
While the line between legislation and enforcement can become blurred, this view is generally reflective of the functions defined in Article I and Article II. The Take Care Clause is one of the most direct articulations of this division. The Clause states “[The President] shall take Care that the Laws be faithfully executed . . .” U.S. Const. art. II, § 3, cl. 4. It is one of the clearest and most important mandates in the Constitution. The Framers not only draw the distinction between making and enforcing laws, but, with the enforcement of the law, the Framers stressed that the execution of the laws created by Congress must be faithfully administered. The language combines a mandate of the execution of laws with the qualifying obligation of their faithful execution.
Nonenforcement orders challenge this arrangement by imposing a type of presidential veto extrinsic to the legislative process. The legitimacy of such orders has long been challenged as an extraconstitutional measure. Yet, since Thomas Jefferson, Presidents have asserted the discretion not to enforce laws that they deemed unconstitutional. Jefferson took a stand against the Sedition Act that was used for many blatant abuses against political enemies in the early Republic. Jefferson cited his oath to protect the Constitution compelling him to act to “arrest [the] execution” of the law at “every stage.” Jefferson’s stand represented the strongest basis for nonenforcement in a law that was used against political opponents and free speech.
From Internet gambling to educational waivers to immigration deportations to health care decisions, the Obama Administration has been unilaterally ordering major changes in federal law with the notable exclusion of Congress. Many of these changes have been defended as discretionary acts or mere interpretations of existing law. However, they fit an undeniable pattern of circumventing Congress in the creation new major standards, exceptions, or outright nullifications. What is most striking about these areas is that they are precisely the type of controversial questions designed for the open and deliberative legislative process. The unilateral imposition of new rules robs the system of its stabilizing characteristics in dealing with factional divisions.
I cannot find the authority under the ACA to grant millions of Americans an effective waiver or delay. The White House will clearly defend this as simply an exercise of discretion in the enforcement of laws. There is certainly support in such claims, though they are controversial. I just published an academic piece the explores the constitutional problems with the expansion of the powers of the “fourth Branch.” See Jonathan Turley, Recess Appointments in the Age of Regulation, 93 Boston University Law Review ___ (2013) and Jonathan Turley, Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation, 2103 Wisconsin Law Review ___ (2013). I also wrote a column on the subject for the Washington Post. I fail to see how the legislative process can have meaning if a president can effectively rewrite laws in the name of agency discretion. It is an argument that adds to the already dangerous concentration of executive power under this President.
This issue has nothing to do with the merits of the ACA. As with my criticism of Sebelius for the grossly negligent administration of the law, this is not about how one feels about the law. President Obama will leave a presidency that is dangerously unchecked and Democrats will be saddled with their support of those powers when they are claimed by a president less to their liking.
The President used a clearly misleading argument to secure support for the ACA. He is now trying to reduce the outcry over that argument with a political recalibration of the law. To do so, he is acting in a clearly legislative fashion in my view. I could be wrong. The White House may find a provision in this law (that few members actually read) where it gives him the power to unilaterally grant exceptions and delays to different groups. However, they have not suggested it and I cannot see it. That leave us with the same inherent executive power argument that has been the mantra of this President in areas of surveillance, kill lists, and other areas.
The “fix” makes obvious political sense for the Administration but I fail to see the constitutional basis for such unilateral changes in a federal law.
There may be a difference with this case: For example, if a president were to go to war without the approval of Congress (Article One power) – Congress under Article One also controls the purse-strings and could NOT fund that unilateral action by a president – in other words the Executive Branch infringed on the authority of the Legislative Branch.
In the ACA example, the Legislative Branch is defunding an enacted “law” (not a bill) passed by the Legislative Branch – they are attacking their own law.
Why couldn’t the Executive Branch “execute” legislation passed by the Legislative Branch? Congress already agreed to it.
It is time for a Revolution
It’s really gotten to the point that he’s damned if he does and damned if he doesn’t. History will reflect the absolutely horrendous way in which this President was abused by those that hate him and not just for his politics. it’s going to go down as a shameful period in the history books. Our grandchildren will ask why there wasn’t a bigger outcry against such disrespect, hatred and obstructionism.
He does something that those who lost their substandard policies wanted and he still gets bashed. It’s no longer even surprising.
The President recognized that the Fox so-called news audience needed a simple sound byte. He would have lost their extremely short attention span had he gone on to say that Health insurance companies are free to change policies whenever they want and historically have raised premium costs on a regular basis. He should have also mentioned that many health insurance executives make hundreds of millions of dollars in salary and bonuses and those folks use part of that largess to contribute to political campaigns. His most important comment should have been that everyone is entitled to high quality health care and the only way that is going to happen is with single payer universal health care. But he would have lost their attention after the first sentence.
ACA a.k.a. “ObamaCare” is a great idea that is way, way past due. We are the only nation that had institutionalized the law of the Pharisees who walked on by the injured when the Good Samaritan stopped to help.
The prime resistance to it all along has been induced by the military propaganda machine:
(Deja Vu – Guns v. Butter Election Looms – 2). The same military NSA folks who watch your every move don’t want you to have health care for some “reason.”
Indoctrinated?
What doors or boxes have we opened that can never be closed….. I recall a story about Pandora’s box ….. Maybe I don’t see the greater good ……
Good point leejcaroll, “bait and switch” lies when a merchant entity has both bait and switch power, then benefits from that power to the detriment of customers who reasonably relied on the bait.
Insurance corporations are state law creatures that are not employees or agents of the federal government.
They have been doing good and bad business for a long time, in their private domains, outside the federal government domain.
NS I see that the main problem with the Act is the failure of the administration to hire a private enterprise contractor which knew what it was doing. Your criticism of the current crisis is that Obama should have KNOWN before hand that the contractor could not do the job. That takes some soothsaying that is well beyond most of us. Glad to hear that you do not suffer from that limitation. The basis of the topic is the failure of the contractor which makes it impossible to allow for a reasonable enforcement of the law. Your position and that of the others is that the rest of us MUST be punished for their failures with NO consideration or mitigating circumstances allowed. Good luck with such flawed reasoning since I think that most Americans will agree with Obama that we and he should use our common sense in enforcing the law. I sure hope that you insist that a cop give you a ticket for traffic infractions and not give you a reasonable break. Unless of course, you never make such errors and are a perfect motorist.
Wow!
This is not a classic bait and switch. This is a classic Koch Brother attack on President Obama by the author of the blog article.
randy, You can be sarcastic if you like, but these problems were seen by people a long time ago. Obamacare was a Frankenstein piece of major legislation. Even supporters of the law said years ago it had MAJOR flaws. Well, the monster is now out of control. You can’t rewrite history when it’s this recent. Maybe your kids or grandkids can, but you can’t.
He was wrong and right. He should have added a caveat when he said that, that the insurance companies have offered, within the last year, policies that they know will not be in compliance. It is the insurance companies who are engaging in bait and switch
randyjet, Common sense was called for BEFORE this train wreck was passed. In essence, the prez has put insurance companies into the position where he’s telling them to break the law. You can’t make this stuff up. Obama just regally gave businesses a year waiver. He just told insurance companies to break the law he rammed through Congress. There’s a good chance he’ll break his own law again giving all individuals a year waiver to get insurance. Except for the blue Kool-Aid drinkers, this guy has been standing naked for awhile now.
NS Glad to see that you are omniscient and can devise laws, and things that are fail safe and perfect for all things and purposes. You need to be President or a member of Congress then with your infallible abilities. The rest of us have to deal with our limitations and flaws and use a modicum of common sense to apply laws and regs.
The line grows longer.
A month ago I tried to count how many challenges were filed against the ACA and possibly facing the Supreme Court and just gave up the count at 70. There were more to count but my eyes were tired and my computer was threatening to leave the room.
I suspect he’s (Obama) going to find the out somewhere in the IRS Regulations though their role in the whole matter is also one of the law suits facing the Court.
Reblogged this on Brittius.com.
I hope that Prof Turley will insist that a cop give him a ticket if he is stopped for speeding or some other traffic violation. It is quite obvious that in any system there has to be some room for common sense to prevail. As one airline used to have in its General Operations Manual printed on every page, NOTHING IN THIS MANUAL will contravene COMMON SENSE! While it is good to obey the written rules and they should be enforced, I think it is more important to use common sense in carrying out them and to carry out the spirit and intent of the law.
I have violated some rules and regs, but I do so with the full knowledge that I may be called to account for that. My rule has always been, that I do so as long as I can stand before a jury of my peers, and feel good about justifying my actions as being in the spirit of the law and safety concerns. It is absurd for any opponent of ACA to protest at Obama’s action since they are against the whole thing in any case. To insist that he carry out the law that they hate, is more than cynical politics, and can have no consideration for their position. The Constitution DOES have a remedy if Congress feels that he has violated it. They can impeach him and remove him from office. That is the nice thing about the checks and balances.
It’s worrying in the context of this president. No president should see himself as empowered to change the law. He has done this time and time again more often than not for the benefit of corporations.
While I am outraged by what is happening in Washington I feel compelled to object to the “Stepin Fetchit” comment above. It is inappropriate.
Dictators & kings do not need permission to do whatever they damn well please – and our current president has been sliding down that slippery slope for a while. Power is a seductive and corrupting influence. Of course he “thinks” everything he is doing is for “the good of the American People” without ever realizing that it is the mere assumption of that power that is damaging our country, our people, permanently, irreparably and beyond measure.
It is a sad sad day in Amerika – we are witnessing the death of our liberty.
This sets a worrying precedent for future presidents.
Reblogged this on danmillerinpanama and commented:
An excellent essay on whether President Obama has the constitutional authority to “fix” ObamaCare as he announced yesterday. The conclusion is that absent some uncited provision in the ObamaCare legislation, He does not.
Stepin Fetchit in charge here…