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.
Veronica, I have no “furor” for you. You and I just disagree. When the minority party, Dem or Rep, only control one branch of Congress, this is what often happens. When you ram through a monstrous bill, that controls 1/7 of the economy, on a party line vote, it is naïve to think the back benchers won’t become intransigent. Obama is doing it the Chicago way where there is NO opposition party. It doesn’t work in DC.
Veronica:
What party? I just stated, unequivocally, that I am an independent. Is there an independent party? I’ve been calling for universal healthcare since 1985. It is not what the president is doing, it is how he is doing it. There are laws, and those laws must be respected. He doesn’t get it. He is a constitutional professor who has taken his knowledge of the constitution and twisted to fit his distorted view for the future of my country, America. Grow-up? I’m 64, how much more do I need to grow up?
nick spinelli: “Who will be the first, “Yeah but, Bush/Republicans” to comment here?”
I wouldn’t even go there if Professor Turley hadn’t said that Obama is worse than Bush. He’s not.
“That controversy magnified after millions of people lost their insurance plans”
Following the next link we see that what Professor Turley refers to as “millions of people lost their insurance plans” is really “as many as 2 million people may need to get a new insurance plan.”
How disingenuous from the guy who hates Presidential misuse of power yet supports Citizens United. Talk about cognitive dissonance.
And how about the fact that most, if not all, of those people who “lost their insurance plans” will get better ones?
“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.”
Lumping all the Democrats together isn’t very accurate. Not all Democrats like these moves, and some progressives have spoken out against them.
“It is the ultimate example of personality overwhelming principle.”
Really? Trying to make a health care law work better is the worse than what Bush did?
It’s getting harder and harder to take you seriously, professor, and that’s a shame.
“We COULD once have a Republican President.” No, we WILL once have a Republican president. This President is using Dick Nixon’s tactics, added a Chicago flavor, and makes any Republican prez to date, look like a ham n’ egger.
Justin L. Petaccio : how exactly are you so NOT in support of what this health care system offers – it is a STEP in the right direction that YOUR party proposed (the Heritage Foundation created the plan!)
I suspect it is the Obama name that you are fighting, you just can’t help it – sorry you haven’t yet realized that you actually have a really classy president who has suffered the most outrageous, disgusting behavior against him that I have seen in the 30 years I have been in this country, and he and his wife have smiled and shown sweet tolerance in a way that I would NOT have been able to do !!! When you spout hate you are actually destroying YOURSELF – that is why the rhetoric has been getting worse and worse over the past 5 years – amazing the low level that people will let themselves descend to in the attempt to be spiteful against the lawfully elected Presidential choice of the people.
God help this democracy – there will be another black president one day. let’s hope you will grow up by then !
“He wants to try and get this healthcare plan as operational as possible,”
That is a bizarre statement. The action we are discussing here actually delays implementing the plan. It would seem that delaying the mandate is, in fact, specifically preventing the health care plan being as operational as possible.
Not only is the method used by the president questionable and troubling. It appears to be motivated by purely political considerations. The sole consideration seems to be what is good for the party in coming elections not what is good for the country, what is good for health care, or what is good for individuals who might be eligible.
I have said it in other articles, but it bears repeating. Until and unless we get money out of politics, don’t expect a change in the way things are done. Whether it is a Congress that shirks its responsibilities and blocks any meaningful legislation or programs or an over reaching Executive branch.
Times to be afraid in…. Congress doesn’t do what’s in the peoples best interest…. The Sct are bought and paid for the gift of lifetime appointment….. The executive branch is trying to do what he thinks is right…. But going about it all wrong…. There is very little separation of powers left…. I long for the days of cases like Marbury vs Madison……… Where there was finally an agreement what each branch should do…. Though this case dealt with quasi recess appointments…..
Until we dump all that are presently in power out…. Nothing will change but the name…..
Eleazor : “He will get away with it because it is what the people want. ”
SO – that’s something that should be STOPPED eh ?
When you vote what are you expecting – that YOUR vote will count but the votes of the ‘OTHERS’ not count ?
New rules are being written inb lots of states to prevent the ‘low life’ from voting – this will NOT be a democratic republic any longer once they have got that done – what will you think when it is YOUR vote that you find is not being counted – no reason to suppose you are immune from that policy is there ?
Those who consider themselves ‘upper class’ were always a problem in Europe and had to be squashed by those who wanted their own rights – does this sound familiar yet ?
Veronica:
I don’t consider myself ignorant just because i happen to disagree with you.But as an independent American, I believe the so-called Republicans are looking out for the country by opposing Obamacare. But we agree that the United States does not have a national healthcare system is outrageous and reprehensible.
nick : if you were now in Obama’s shoes with a congress in complete logjam and boasting about their main focus basically to ‘DO IN’ this president (the choice of the US people) – what exactly would you do ?
He wants to try and get this healthcare plan as operational as possible, it IS the Republican’s plan (that is until Obama proposed using the same idea !) – now 60%+ of the population do not want this healthcare plan cancelled because they know this is a good base to start with.
The US is the only ‘civilized’ country without a public health care system (the existing system is #24 in treatment outcomes!) – this is the best Obama could get FOR THE MOMENT- I am crossing my fingers that more of the working population realizes one day which political party is actually on THEIR side (hint : it is NOT the Republicans!) and vote accordingly – amazes me completely what I hear every day from the right – what a bunch of ignorant people they are – Americans should be ashamed of the rhetoric coming from that side. As a woman I am particularly aghast at their ‘conservative’ ideas also !
We are almost at Taliban level from these nuts.
I guess you will give me a lecture about guns and ‘freedom’ so I will wait now to get the frenzied furor back !!!
Eleazer Bryan:
Timely words.
Interesting too, how Democrats need to be “scared” with the notion of a Republican president in order to get them to sit up and take notice. It seems to indicate that a Republican president grab yet more power. Should we be more frightened by a Republican president and Congress?
He feels the need to do this to try and forestall a severe backlash in November. He will get away with it because it is what the people want.
As long as he “gives the people their bread” Caesar can successfully subvert the system. It is at some point after Caesar’s reign that the republic fully ceases and the empire begins.
“Our age…inherited the Republic like some beautiful painting of bygone days, its colors already fading through great age; and not only has our time neglected to freshen the colors of the picture, but we have failed to preserve its form and outlines. For what remains to us, nowadays, of the ancient ways on which the commonwealth, we are told, was founded? We see them so lost in oblivion that they are not merely neglected, but quite forgot. And what am I to say of the men? For our customs have perished for want of men to stand by them, and we are now called to an account, so that we stand impeached like men accused of capital crimes, compelled to plead our own cause. Through our vices, rather than from happenstance, we retain the word “republic” long after we have lost the reality.” Cicero
Jonathon: you are absolutely correct, now let us do something about the abuse of authority. I like you love this country and can not stand the Aulinsky type of politics Obama is practicing . Why don’ t you give congress a nudge and advice . I have asked our Rep. Peter Roskam to get a hold of you and hire you to advise the congress.
A proud American
God Bless America!
What’s the solution? What can be done? What should be done? How can these overreaches be legally dailed down to force a President to remain within his Constitutional role? The problem has been publicized, discussed in Congressional hearings, what’s next? I’m a Democrat, I know we could once again have a Republican president.
If there is co-equal branches of the federal government then let the judiciary stand up and show me.
I like to look @ issues and think of them in different terms. What is happening here is akin to the person who plans on dieting January 1st and so they binge eat from Thanksgiving to NY Eve.
Great piece, Mr. Turley. But you must be a freakn’ conservative!!!
Let’s get started. With all due respect to you, Professor Turley. Until someone can convince me otherwise, the judicial branch of the federal government is impotent to do anything to check the abuse of power by the Executive. Hence, the concept of co-equal branches of government is a fiction. I don’t buy “the long-standing rule that the judiciary is adverse to get in the middle of a political food fight. That’s crap. The judiciary has a constitutional obligation and responsibility to get involved. The over-paid, pampered justices need to get off their lazy asses and do something. We ONLY have a constitutional crisis looming here, folks. Thanks.
Who will be the first, “Yeah but, Bush/Republicans” to comment here?