How many boundaries will be
violated bent before our representatives do their duty and take action?
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 Justice Department’s Office of Legal Counsel, which advises the president on legal and constitutional issues, has repeatedly opined that the president may decline to enforce laws he believes are unconstitutional. But these opinions have always insisted that the president has no authority, as one such memo put it in 1990, to “refuse to enforce a statute he opposes for policy reasons.”
Attorneys general under Presidents Carter, Reagan, both Bushes and Clinton all agreed on this point. With the exception of Richard Nixon, whose refusals to spend money appropriated by Congress were struck down by the courts, no prior president has claimed the power to negate a law that is concededly constitutional.
In 1998, the Supreme Court struck down a congressional grant of line-item veto authority to the president to cancel spending items in appropriations. The reason? The only constitutional power the president has to suspend or repeal statutes is to veto a bill or propose new legislation. Writing for the court in Clinton v. City of New York, Justice John Paul Stevens noted: “There is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes.”
The employer mandate in the Affordable Care Act contains no provision allowing the president to suspend, delay or repeal it. Section 1513(d) states in no uncertain terms that “The amendments made by this section shall apply to months beginning after December 31, 2013.” Imagine the outcry if Mitt Romney had been elected president and simply refused to enforce the whole of ObamaCare.
This is not the first time Mr. Obama has suspended the operation of statutes by executive decree, but it is the most barefaced.
Ever since Bush took office, I have been hearing reports trickling in about how this or that boundary has been violated. Lots of complaining, but precious little action.
Under Obama, it appears to be getting worse rather than better. And the most powerful media outlets are now collaborating rather than opposing.
Last week the Obama administration disclosed a big story in a small way. The big story: the administration is delaying the enforcement of the Obamacare employer mandate for one year. The small way: a post by Treasury Asssistant Secretary Mark Mazur.
The post whipped up words into cotton candy. The abuse of language in the announcement is disgusting. Nothing to see here, just government officials reflecting on their engagement in “a dialogue with business.”
from Powerline blog
Obama’s Mini-Coup d’Etat
In high school civics courses, we are all taught that there are three branches to the United States government: the executive branch, the judicial branch and the legislative branch.
With all looking on, last week President Obama took over powers specifically granted to the legislative branch.
In this case the Administration is preemptively announcing that it will not even attempt to meet the relevant deadlines and begin enforcing provisions when they are due to come into force. The decision to delay enforcement of the employer mandate also has substantial practical implications. As I noted here, the delay will prevent the collection of information necessary to determine whether individuals are eligible for subsidies when they purchase qualifying health insurance plans on exchanges. No matter, for the Administration has also announced that there will be no need for exchanges to verify an individual’s eligibility before awarding such subsidies, at least not before the employer mandate and associated reporting requirements are enforced in 2015.