I recently testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. This week, President Obama went even further with the announcement of a new sweeping exemption that not only has no foundation in the federal law but directly contradicts the law. It also happens (again) to be a change debated but not accepted by Congress. The exemption appears an effort to blunt growing criticism of Obama for a false assurance given to citizens before the enactment of the ACA. It is also coming at a time of new polls indicating that Obama is not only hitting a record low in popularity but Republicans appear poised to gain seats in both houses (and potentially could retake the Senate as well as add seats in the House). [Update: The White House is now denying that it will implement the hardship exemption despite the article in the Wall Street Journal and other media]
The individual mandate has long been the most controversial part of the ACA. That controversy magnified after millions of people lost their insurance plans despite assurances from Obama that no one would be forced to give up plans that they like. Even the Washington Post declared the statement to be false and a case of consistent and repeated misrepresentation.
The political damage over the ACA is clearly growing. That damage was greatly magnified by the mismanagement of the rollout by Health and Human Services Secretary Kathleen Sebelius and her staff. Such political costs of federal law however are not a basis for regulatory changes, even when such changes are allowed under the federal law. In this case, the President has far exceeded any plausible claim of statutory or regulatory authority. The individual mandate is the heart of the ACA and was the subject of heated and careful drafting. There is no provision for an exemption, but Obama has now rewritten much of the act with a series of extra-legislative changes — no fewer than 13 such executive changes to the law.
This last change will allow virtually anyone to avoid the individual mandate requirement — precisely the option that the White House successfully blocked when proposed in Congress.
The new change would allow individual to claim a “hardship exemption” to avoid paying a penalty for not buying insurance. That would fundamentally change the operation of the law. Not only does this contradict the law but the Administration fails to clear define what a “hardship” would be. It only says that such an exemption can be claimed if citizens “experienced another hardship in obtaining health insurance.” It seems designed to allow the maximum number of people claim the exemption, particularly given the rather forgiving standard that the person should “submit documentation if possible.”
The President continues to operate well off the Madisonian map — inventing exemptions and granting suspensions where no provision is made under the law. Most importantly, he is ordering changes proposed and rejected in Congress.
These changes are unlikely to receive serious judicial review if past cases are any measure. The Administration has repeatedly relied standing challenges to block review. Since the Rehnquist Court, standing has steadily shrunk to the point that constitutional violations are now being left unreviewed for lack of standing. The courts have long been, in my view, absent without constitutional lead as discussed in prior testimony (here and here and here).
Democrats continue to enable this shift of power to the Executive Branch with no concern for the changes that they are making to our balance of power. They continue to yield power to the Executive Branch even as evidence mounts that they are headed to a possible electoral disaster. It is the ultimate example of personality overwhelming principle. It is not just incredibly short sighted but self-destructive. A future president can easily claim the same inherent authority to suspend or grant exemptions to environmental or anti-discrimination law or suspend tax burdens for the top one percent. It would also mean that a president is virtually unlimited in being able to amend or suspend laws. It makes the legislative process merely a discretionary stage for presidents.
The animus toward the Republicans is blinding Democrats to the implications of what President Obama is creating in this new uber presidency. The President is appealing to that animus in taking these steps and aggrandizing power in his branch. It is part of “all is fair and love and politics” approach to constitutional law. It would take offline the stabilizing elements of the system and reduce the system to little more than raw muscle plays by politicians. Under our current system, there is only so much harm that any branch can do if it remains within the constitutional lines. It is designed to be idiot-proof and we have truly tested that design. However, once one branch goes outside of the lines, the system is left as little more than politics at any means.
While there will be many who applaud the latest insular change either for its political or practical benefits, it will join a troubling mosaic of unilateral and unchecked executive power. There will come a day when people step back and see the entire mosaic for what it truly represents: a new system with a dominant president with both legislative and executive powers.
237 thoughts on “A Government Unto Himself: Obama Administration Creates New Sweeping Exemption Under The ACA [UPDATED]”
Re: ” Andrew Jackson had two citizen parents…”
That should read Andrew Jackson had two parents, neither of whom were citizens….” (and of course, he was perfectly loyal.)
There is no evidence whatever that Chester A. Arthur hid the fact that his father was not naturalized:
Re: “The Founders understood, presumed, intended and knew that “Natural Born Citizen” was defined by two citizen parents to effectively protect and safeguard the nation from foreign influence and allegiances, and that, in deed, the requirement was, subsequently, strictly complied with by Presidential candidates.”
Answer: The Founders (actually, the writers of the Constitution are called “The Framers.”) never said that they thought that the US-born children of foreigners were “foreign” or had “foreign influences” or that there was any problem at all with their allegiances. And they were right because the US born children of foreigners have fought and died for the USA in two world wars, and there has never been a shred of a hint that they were any less loyal to the USA than the US-born children of US citizens.
Re: “1. “Native” and “natural born citizen” are synonymous, attributable to Vattel
and equate to two citizen parents.”
Answer: If they were using the Vattel definition, they would have said so—but they didn’t.
Re: “2. The Founders were well acquainted with and influenced by Vattel.”
Answer: Yes, but they read a lot of other books too. And they certainly were not influenced by Vattels’ re recommendation that every country should have a state religion. We did not follow that recommendation of Vattel, and there isn’t a particle of evidence that we followed his two-citizen-parent requirement either.
Re: “3. The Founders, Jay and Hamilton, with specificity, wrote that foreign influence
and foreign allegiances would be opposed with the maximum effort…”
Answer: Once again, they NEVER SAID that the US-born children of foreign citizens were “foreign” or “foreign influences”. And they never said that the US-born children of foreign citizens had foreign allegiances—and the common law says that people born on the soil of a country can have legal allegiance ONLY to that country. IF they had differed from the common law on that or on anything, THEY WOULD HAVE SAID SO. But they didn’t.
Re: “. The Committee of Eleven changed “citizen” to “natural born citizen”
raising the requirement after receiving Jay’s letter.”
Answer: John Jay was an expert in THE COMMON LAW. If he had used the term Natural Born Citizen any differently than in the common law—which referred to the PLACE of birth—-he would have said so.
Re: “the highest semantic form.”
Answer: The highest semantic form was “not naturalized.” There was NO mention of parents whatever.
Re: “5. All candidates for the office of President had two citizen parents or a “time of adoption” waiver.”
Answer: The time of adoption waver does not make someone loyal. If a president who had two foreign parents was perfectly loyal, then there is no proof that a president with two citizen parents would be disloyal—much less one with one citizen parent. Andrew Jackson had two citizen parents, and was perfectly loyal. There is NO evidence that James Buchanan’s father was naturalized, and there is no evidence that Chester A. Arthur hid the fact that his father was not naturalized, and both Woodrow Wilson and Herbert Hoover had foreign mothers who only became US citizens automatically on marrying their US husbands but never swore an oath of allegiance to the USA or renounced their foreign citizenship.
Re: “. Chester A. Arthur, the single candidate without citizen parents, was compelled to fraudulently make it appear as if he had, which was described in the book by A. P. Hinman.”
Answer: That book was written by an enemy of C.A. Arthur. There is no evidence whatever that he hid the fact that his father was not naturalized, and the first presidential candidate of the Republican party, John. C Fremont, PROCLAIMED that his father was not naturalized——-so he could hardly have worried that the fact that his father was not naturalized would make him, Fremont, not eligible to be president.
Fremont believed, correctly, along with Tucker and Rawle, and the Lynch V. Clarke ruling and the US Supreme Court in the Wong Kim Ark case (years later) and the Heritage Foundation book and the Congressional Research Service (all still later) that the meaning of Natural Born Citizen comes from THE COMMON LAW (not from Vattel), and that the term refers to the place of birth (not the citizenship of the parents), and that every child born on US soil is a Natural Born Citizen. They are right, and you are WRONG.
The Founders understood, presumed, intended and knew that “Natural Born Citizen” was defined by two citizen parents to effectively protect and safeguard the nation from foreign influence and allegiances, and that, in deed, the requirement was, subsequently, strictly complied with by Presidential candidates.
1. “Native” and “natural born citizen” are synonymous, attributable to Vattel
and equate to two citizen parents.
2. The Founders were well acquainted with and influenced by Vattel.
3. The Founders, Jay and Hamilton, with specificity, wrote that foreign influence
and foreign allegiances would be opposed with the maximum effort saying,
“every practicable obstacle…foreign powers to gain an improper ascendant
in our councils” and “it would be wise and seasonable to provide a
strong check to the admission of Foreigners into the administration
of our national Government…”
4. The Committee of Eleven changed “citizen” to “natural born citizen”
raising the requirement after receiving Jay’s letter. These writers
enhanced the text and increased the effect of the eligibility
requirements on the basis of the intent expressed by Jay, Hamilton
et. al. The eligibility requirement was expressed in the highest
5. All candidates for the office of President had two citizen parents or
a “time of adoption” waiver.
6. Chester A. Arthur, the single candidate without citizen parents, was
compelled to fraudulently make it appear as if he had, which was described
in the book by A. P. Hinman.
Re: “Only congress has STANDING to scrutinize for presidential eligibility.”
Answer: You are wrong, the Constitution gives that job to THE ELECTORAL COLLEGE, but say that you were right, well the evidence is that the Congress confirmed Obama’s election UNANIMOUSLY, showing, duh, that it did not have any doubt about Obama’s eligibility.
Re: ‘ 2. The narrative of the Chester A. Arthur fraud:”
An enemy of Arthur wrote that. It is true that Arthur’s father was not a citizen. But it is NOT TRUE that Arthur hid that fact, and neither did John C. Fremont (the first presidential candidate of the Republican party.)
Re: “ 3. All Presidents except Arthur were born to citizen parents.”
Answer: Not true. Andrew Jackson had two foreign parents. (You mean all presidents since the expiration of the Grandfather Clause—but even that is not true since there is no evidence that James Buchanan’s father was naturalized.)
Re” “ Arthur lied and perpetrated a fraud to obscure that fact.’
Answer: NO he didn’t.
Re: “Jay and Hamilton did indicate that NO foreign influence or allegiance would be tolerated in high office.”
Answer: Neither of them said that foreign born parents were a foreign influence. If they had thought so, they would have said so, but they never did.
(And the US born children of foreigners have proven themselves just as loyal as the US-born children of US citizens in two world wars—and there is NO evidence whatever that the members of Constitutional Convention EVER thought that the US-born children of foreigners would be more disloyal than the US-born children of US citizens, and you know, they were right.)
Re: “You know that the Founders presumed and understood that the maximum level of eligibility requirement was intended because that is what they wrote and that is what they did in subsequent elections.”
Answer: They never wrote a thing about two citizen parents being required (or even one). So the maximum level of eligibility was not being a naturalized citizen—which is not required of US Congressmen and US Senators.
Re: “Not only did they write that way but they lived that way – the way of “parents.”
Answer: Then didn’t write it and they didn’t live it either. And Andrew Jackson had two foreign parents, and he was perfectly loyal.
Re: “You know that the Founders never intended for subsequent interpretation to allow for the eligibility for the presidency, of a child born in America to two illegal aliens. “
Answer: Since they did not bar Natural Born criminals from becoming president, I DO NOT KNOW ANY SUCH THING.
I suppose they would not have liked a former (or current) nude dancer to be elected president—but THEY DIDN’T SAY that a former or present nude dancer was not eligible—so she or he IS eligible (but you do not have to vote for that candidate). The principle is that the VOTER gets to chose, and that we get to decide whether to vote for the nude dancer or not to, or for the children of illegal immigrants or not to. Unless the Constitution specifically says that something is not allowed, it is allowed—and there is nothing in the Constitution that bars criminals or nude dancers or the children of illegal immigrants from becoming president.
Re: “You know that something compelled Presidential candidates to have citizen parents. “
Answer: Most did, but Andrew Jackson, James Buchanan, Chester A. Arthur, John C. Fremont didn’t. Obama has only one citizen parent. Jindal and Rubo do not have any (like Andrew Jackson).
Re: “You know that the Founders lived in an era when it was typical, usual and traditional for most people, and certainly people with ambitions for position and high office, to be married citizens who bore children in their country and that that would assure against foreign influence and allegiances in high office.”
Answer: And until the first Catholic president was elected, they were all Protestant, and until the first woman will be elected, they were all men.
Re: “You know that the understood two-parent requirement is what candidates did indeed. You know that the “parents” requirement was the cause and the effect.”
Answer: If there were a parent requirement, they would have told us—but they didn’t.
Re: “I know that you are absolutely correct that 535 elected officials have acquiesced on the issue.”
Answer: And not only that, but 535 elected officials did it TWICE. Plus ten appeals courts all ruled the same way; plus the current US supreme court turned down a birther appeal of one of those rulings, plus not a single member of the Electoral College changed her or his vote to vote against Obama out of the nutty idea that two citizen parents are required. They are right—and the Heritage Foundation book is right, and Tucker and Rawle are right—and you are wrong.
1. Only congress has STANDING to scrutinize for presidential eligibility.
2. The narrative of the Chester A. Arthur fraud:
How a British subject became president of the United States.
By A. P. Hinman.
3. All Presidents except Arthur were born to citizen parents.
4. Chester A. Arthur knew that two citizen parents were required and
that previous Presidents had “parents.” Arthur knew he was not eligible.
Arthur lied and perpetrated a fraud to obscure that fact. Arthur’s
actions acknowledged that the “parents” requirement was presumed
and understood by the Founders and Presidential candidates.
5. Jay and Hamilton did indicate that NO foreign influence or allegiance would
be tolerated in high office. Jay and Hamilton indicated that they would place
insurmountable obstacles in the path of any who sought high office. Jay
Hamilton said they would use the strongest measures to assure,against
“foreign powers to gain an improper ascendant in our councils.” It is
inconceivable that Jay and Hamilton intended for eligibility requirements
to allow a child of aliens or foreign citizens to be eligible for high office.
You know that the Founders presumed and understood that the maximum level of eligibility requirement was intended because that is what they wrote and that is what they did in subsequent elections.
You can see what the Founders wrote and intended, and that the Founders “LIVED” the highest standards for the highest office. Not only did they write that way but they lived that way – the way of “parents.”
You know that the Founders never intended for subsequent interpretation to allow for the eligibility for the presidency, of a child born in America to two illegal aliens. You know that from reading the Jay letter and Hamilton’s piece. You know that something compelled Presidential candidates to have citizen parents. You know there was precedent as all Presidents complied with the “parents” requirement and the one that didn’t lied about it and concealed the fact that his parents were not citizens.
You know that the Founders lived in an era when it was typical, usual and traditional for most people, and certainly people with ambitions for position and high office, to be married citizens who bore children in their country and that that would assure against foreign influence and allegiances in high office.
You know that the understood two-parent requirement is what candidates did in deed. You know that the “parents” requirement was the cause and the effect.
I know that you are absolutely correct that 535 elected officials have acquiesced on the issue.
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