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.
DavidM: I think this will be forgotten about as much as “Monica Lewinsky” and “it depends upon what the meaning of the word is is.”
Then you fail to understand human psychology, David, because these two things are not equivalent at all.
Getting a blow job in the Oval Office is not a technical glitch or correctable fumble of a new government service. The saving grace for the ACA rollout is quite simple, a functioning website. I can open my (virtual) rolodex and collect the names of at least five of my fellow contractors that could blast through that task from scratch in a few months. The NSF and other government agencies can find 50,000 even more highly qualified people to press into service in a matter of weeks. For most of my former mercenary comrades, write a big enough check and they will drop what they are doing and show up in the morning. (I’ve even seen contractors successfully scale back a commitment at one company to 40% time in order to address emergency support problems for a previous client; it is not impossible.)
Money talks in the tech industry. The ACA website not working is not salacious, it is not adultery, it is not sex. It betrays absolutely nothing about Obama’s fundamental character. It is a business screw-up the vast majority of workers have experienced themselves in their own company, a slight embarrassment forgotten the minute somebody else embarrasses themselves in the same way.
Jake: When I need to put food on the table to feed my family that means I have to go get a job…
And if you cannot work? Or if you look for a job and no job is to be found? Would you rather starve, or steal from a store, or get a government funded sandwich?
Jake says: not go ask the government to give me a hand out while other hard working citizens have to pay the freight.
If, when you were working your taxes paid for food for citizens unable to work, then when you are unable to work, you are entitled to help with food too. It is not a hand-out, it is something all people are entitled to when they cannot work, either physically, or medically, or due to the demand for work being smaller than the supply of workers to do it.
In all of those circumstances you would condemn adults and children to death by starvation over your petty jealousy. That is not the majority view in this country, and so we reject it, and too bad if you don’t like it; you can always get your revenge on us by quitting work altogether and earning so little that we feel compelled to feed your petty, angry ass, because even if we hate you, we don’t want you to starve. We just aren’t as brutal or vindictive or uncaring as you are, Jake.
The Colts were cocky going into the 1968 Super Bowl. They were certain their legacy would be “intact.” Arrogance and cockiness are self destructive.
“Oh, and the bill for the fix is going to be about $5X, please be sure to pay those invoices on time.” (Tony C)
lol … yep, the fix is always the real moneymaker and you are sooo right about years down the road when the problems with the roll out have been forgotten. Legacy intact.
Blouise wrote: “you are sooo right about years down the road when the problems with the roll out have been forgotten. Legacy intact.”
I think this will be forgotten about as much as “Monica Lewinsky” and “it depends upon what the meaning of the word is is.”
SOTB,
I hope I was able in my explanation to pdm to dispel any notions that I consider myself tech savvy. I really did try to understand all the points you made in your posts but have to admit that you had me muttering to myself. Back in the 60’s my father took me to a symposium on this new technology called computer science. He was a highfalutin exec so naturally the thing was held in a hotel’s grand ballroom after a multi-course dinner (those guys never met in the basement room). PC’s hadn’t been invented yet and the talk was all about these huge pieces of equipment in gigantic air conditioned rooms using something called binary numbers. There were lots of slides and tech talk and I admit I zoned out completely.
He figured it was the coming thing and that I was going to be running my own business (selling my music) so needed the knowledge. (same reason he made me get an MBA)
After the program and as we were exiting the ballroom he warned me that there was lots of opportunity for graft in this new science so beware. The tech talk flew right over my head but that warning stuck. 😉
Jake:
yep, and this sh*t has gone on for way to long.
Sonofamotherlessgoat or what ever your name is…
The House calls for impeachment and the Senate is responsible for trying the proceedings of impeachment, where you get one person can call for impeachment is beyond me. Unless you are referring to Boehner not having the stones to actually allow the House to bring forth the process then yea I agree with you there, he is a coward.
Every time Obama or ANY President for that matter makes changes to a law without allowing Congress to have their say is committing crimes against the constitution because they are not upholding their oath to protect and defend the Constitution.
And you are correct it is wishful thinking that Congress do its duty and impeach Obama because the Democrats are to busy protecting their golden goose in the White House and insuring that as little or no damage come to the Democrat political label while Republicans are so afraid of negative press that nothing is going to happen.
And as a matter of fact I do hate Obama, I hate all the liberals that think the Constitution exists solely as an opportunity to further their communist progressive social experiments. I do not need you or the government to tell me how to live my life. When I need to put food on the table to feed my family that means I have to go get a job…not go ask the government to give me a hand out while other hard working citizens have to pay the freight.
The ACA is so unpopular that to even get it passed into law the Senate, specifically Harry Reid, used a gimmick to get it passed, because he knew that once the Senatorial seats were set and all Senators had a chance to vote on the bill on its merits it would not have passed. Then of course Obama steps in after the bill is law and makes this change and that change just so it wouldn’t hurt his party in upcoming elections.
This country was not founded to establish a government to “make life fair” this country was founded to provide equal opportunity to freedom and liberty.
Well said, Jake.
Oky, Thanks for the video. I hope everyone here takes the 20 minutes to watch it.
I read people that I like and respect calling NO BID CONTRACTS, “Low bid contracts” and put in the context of Mr. Turley’s speech. Mr. Turley talks about “calling things by their right name” as a definition of wisdom. Then this word game on contracts is Orwellian.
Tony C The same thing happens in private industry as well. I have first hand experience with Honeywell’s FMS on the EMB-170. I flew that plane for almost one year when it first came to our airline, and I was appalled that Embraer gave the contract to Honeywell since their work on the EMB-145 was really bad. I asked one of the many tech reps who were in the States trying to work all the bugs out of the plane, WHY did you use Honeywell? Their response was that they asked Collins, RCA, and others if they could do the work within three years. They all said, NO it would take about four or five years. Honeywell lied, and said SURE they can do it in three years. They got the contract. By the time I left, Honeywell was up to the 26 load fix and it STILL did not work. We could not use vertical guidance, nor the RNAV approaches or FMS ones. We had to sort of fake it when leaving certain airports for the clearances and could not use the autopilot.
Unfortunately the system also controlled the engine parameters as well, so that a number of times, I taxied out for takeoff, and had to come back for a computer engine malfunction. The engines were fine, but the computer was not.
SOTB: I think government contractors (and I worked for them several times in a 25 year career as a consultant) are more savvy than you give them credit for.
Eric Holder cannot go after anybody that did not break the law.
I have seen government contracts with major defense contractors that specifically exclude all measures of efficacy or functional operation; surely a software contract for many millions of dollars will have many caveats built-in as escape clauses; nobody in their right mind would guarantee no bugs for a software contract.
In fact, the bugs could easily be part and parcel for the graft. You deliver for $X, which sounds like a reasonable price, but the contract also specifies all the maintenance and repair will be charged at, say, $750 an hour per person and holy cow, it turns out we need about a year to iron out all the bugs we handed you. Oh well, that is what happens when you use untrained overseas programmers, and we were forced into that by the time and cost constraints you gave us. Oh, and the bill for the fix is going to be about $5X, please be sure to pay those invoices on time.
A little help with the shredder please someone? (aka spam filter)
G.Mason – Yeah I guess the 5% that were screwed by the insurance companies really like their policies that had no “…emergency treatment, hospital stays and prescription drugs…”? Is that even a healthcare insurance policy?
The bill would have passed without the 39 Democrats who are looking for re-election next year. Most of them are from that state that passes their own dumb-azz laws like illegal immigration-reform, birther-nonsense requirements, and succession from it’s own state creating a 51st state. Wouldn’t that mean we would have to change ALL of our flags? Good luck with that… :rolls eyes:
Don’t worry this dumb-azz bill won’t get past the Senate nor Mr. Obama. It’s just more saber-rattling by sun-tanned playboy from Cincinnati. You know the one that refuses to call for articles of impeachment (& removal) on his boss? Why? Because if something ever happened to VPOTUS Biden (like it did heart-felt Cheney), he’d become the next POTUS!
G_d forbid! 😯
Oky1 – I don’t get you… Do you really think this crowd is even listening to your Sarah Palin low-effort-thinking process? Can you see Russia from your house too? Give it a rest! It’s starting to get a little ripe in here. Mr. Obama is NOT the enemy. So don’t tread on him OK Oky?
Tony C. and Blouise – Blouise I feel your pain re: ‘pewters… I remember AARPANET and ASR Teletypes. And even the first Hazeltine (or tyne?) video monitors with light pens. Our computer teacher gave us paper computers to learn on. I even built a analog one back in the 60’s. I remember playing tic-tac-toe on some sort of Sperry Univac (or Eniac?) with nixie-tubes. Back then I was just trying to figure out (the late) Ted Maiman’s ruby crystal laser that he CLAIMS he got the idea while at Hughes Aircraft. Computers fascinated me long after that. Yes I have all the old MAC dinosaurs gathering dust in my cellar. Museum pieces by now. I’m into tablets now (no not Alka-Seltzers! 🙂 ). I was in Philly then and was lucky that Franklin Institute was there to countenance me while I played hooky from public school.
Tony C – OK I see your point but it would be kinda’ dumb to pull a stunt like that assuming Eric Holder is sitting on his hands. You do know that Eric is not the type to accept nepotism even if it’s his boss. The boss is exempt from Eric but not the relatives or cronies you claim Mr. Obama is benefiting with NBC’s. Phoebe (FBI) eats that crap for breakfast! I’ve seen them in action on stuff like that. Not even the POTUS can stop that hound when it gets a bone. Trust me… Jim Comey is no J. Edgar Hoover (even without the dress – sorry Jim bad joke I know 🙁 )
Robin,
I agree with your post.
Barkingdog, I believe your post is wrong on so many levels, but I’ll have to get back to it later if I can.
Keep in mind Britain & Canada both have royalty as their head leaders & we in the US fought & won wars against that type crap.
That so called royalty also has a job called “Groomer of the Stool”, maybe you’d like to apply for it & wipe the queen’s bottom while you’re attempt to fix the USA? lol
http://www.zerohedge.com/news/2013-11-15/internet-now-weaponized-and-you-are-target
http://news.yahoo.com/house-passes-republican-health-bill-39-democratic-votes-071544716–sector.html
House passes Republican health bill with 39 Democratic votes
WASHINGTON (Reuters) – In the most significant legislative rebuke to President Barack Obama’s healthcare overhaul, 39 members of his Democratic Party voted for a Republican bill in the House of Representatives on Friday aimed at undermining his signature domestic policy.
The measure, which would allow insurance companies to renew and sell inexpensive, limited-coverage policies that have been canceled because they don’t meet the standards of the new healthcare law that took effect on October 1, passed 261-157.
The 39 Democrats who supported the bill – nearly one-fifth of the party’s caucus – reflected the alarm that spread within Obama’s party this week over the political damage from the botched rollout of the Affordable Care Act, also known as Obamacare.
http://www.zerohedge.com/news/2013-11-15/bill-clinton-gives-sage-advice-obama-cartoon-edition
Where are the people coming from who rant about Obamacare? Do they want a better system of healthcare or are they content with what they call “my insurance”? The ranting causes others to rant. Let us not wallow in Watergate. Those who wallowed in Watergate missed some of the bigger picture of war and the military industrial complex promoted by Nixon. The Koch Brothers want you to wallow in ObamaGate. Go ahead. Be chumps. Thirty years from now when your grandkids laugh at those who opposed a form of government governed medical care you will be seen as a chump. The “fix is in” alright. The fix by the Koch Brothers who want you to rant about ObamaCare and ObamaGate. Let others wallow in it. I am for fixing the glitches or going all the way to a British or Canadian system. RomneyCare is not bad in Mass. When you go to Mass this Sunday do not listen to the preachers from the Koch Brothers who are wallowing. The fix is in? Jeso. Yeah and medicare and social security are bad for granma and granpa. You can blame Roosevelt and Truman for those two.
WOW!!!!! you mean there are still people out here praising obama even though time and again he has shown his outright disdain for the people in favor of corporations????.. he has lied to us in our faces per si..
when will the reality that the corporation formerly hiding as a government has shown itself??. and proven time and again it doesnt care about the people..
obama isn’t a potus he’s the latest ceo. and the last. from here on it will be a one world ceo..they’ve spent hundreds of years putting these plans into place. They’ve been telling us for years in movies, books and speeches what was coming. but at the same time. making it a movie or book also indoctrinated humanity to believe ” thats hollywood. it would,could never happen in real life… WELL IT IS AND HAS..
just as the new police shows has been indoctrinating the people to accept the cops as 2nd in command lord and masters.. ex law and order the new ones the cops cuss out the lieutenant , and pols whenever they want to.
they’ve gotten defeated in some things ,but not all… they need to get ww3 going. real soon to put the rest of their plans into action…..
there is no longer a constitution, no longer rights and freedoms at least for us.. to them we were put here to serve them. even though everything they (1%ers) have they stole from us the people..
Barry knew damn well what was going to happen with his aca.. as for the company who programmed and designed the website fees… hahaha that was set in stone before they even breathe a word to us about it..
same as with citytime here in nyc.. when will those still sleeping decide to awaken?
NO money for food pantries, senior and youth centers, education, jobs nothing… but plenty for specialized military weapons, plenty for skyscrapers, stadiums, parking garages, waterfalls, bike lanes, and big banks.. but none for the people who’s usursy is what pays for it all/…..