January 23, 2018

The Man Behind the Curtain and the Suspension of the Law

obamacare-logoIt’s one thing to delay the implementation of a massive, complex and far reaching government program because it is, well, massive, complex, and far reaching. It’s quite another to act like it’s completely normal and anyone who says otherwise is up in the night.

But that’s exactly what the White House Press Secretary Jay Carney is doing.

Last week the Obama Administration put off implementing the employer mandate of the Affordable Care Act, largely because so many employers were struggling to understand how to comply. The law is a complex beast–what did you expect from a bill that elicited “[w]e have to pass the bill so you can to find out what’s in it” from one of its main supporters? Should we be so surprised that here we are, over three years later, and we still aren’t sure what’s in it?

So, in a shocking turn of events, the Obama Administration decides to make what is obviously in the best interests of the country and not fully implement (yet) the legislation that has come to bear his name: Obamacare.  We should all be happy, right?

Wrong, says Michael McConnell, one of the, if THE, preeminent constitutional scholars in our country (and no partisan hack, either).

In a piece for the Wall Street Journal, McConnell argues that even if suspension of implementation of Obamacare is welcomed by the businesses concerned about the costs, it should raise serious and “grave” questions about how President Obama sees his role in our system of government.

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.

And in case you are wonder, yes, McConnell does reach back into history and compare Obama’s actions to those taken by English monarchs in the seventeenth century, actions that led to civil war in England and eventually to revolutionary war in the American colonies.

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.”

In other words, this type of selective enforcement of the law is such that, according to McConnell, attorneys under Carter, Reagan, both Bushes and Clinton agreed is outside of the President’s purview. The president may only decline to enforce the law when he believes it unconstitutional. It’s why the courts struck down Nixon’s unwillingness to spend money that Congress had apportioned.

It’s an abuse of power.

At the very least, the Administration should explain that, yes, the law is a lot more complex than they said when they were shoving it through Congress, and yes, they probably should have listened to critics and been more careful about it…but, no. That’s not how the games is played.  Admitting a mistake would be tantamount to admitting they were, and still are, wrong.

197308_1_Meanwhile, the ever articulate Carney responded with a smooth “Nuh, uh!

JAY CARNEY: “People who suggest that there’s anything unusual about the delaying of the deadline, implementation of a complex, comprehensive law are deliberately sticking their heads in the sand, or just willfully ignorant about past precedent. It’s just not — it’s not serious.”

Right…tell me again about that precedent?

McConnell has a response to that ready:

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.”

If Obama was looking for a win after the last six scandal plagued months, he’s not finding it by suspending Obamacare. Instead, he’s proving Obamacare’s worst critics correct and giving his partisan opponents more ammunition to push back against the individual mandate, as well. Meanwhile, middle America–that swath of voters who don’t really have time for complex public policy or messy partisan politics, will chalk this up to one more hole in Obama’s integrity.

It reminds me of a line from 1939 Victor Fleming “Wizard of Oz” production, when Toto pulls back the curtain to reveal the “wizard” turning levers and pushing buttons to control the smoke, mirrors and illusions that projected his image to loom above the cowering Dorothy and friends. “Pay no attention to the man behind the curtain!” he shouts, but the game is up. We’ve seen through the trick.

If Obama can’t keep his arguably outlandish campaign promises and is willing to suspend the law when it’s not convenient, can we really trust him on anything else?


About Daniel Burton

Daniel Burton lives in Salt Lake County, Utah, where he practices law by day and everything else by night. You can follow him on his blog PubliusOnline.com where he muses on politics, the law, books and ideas. He is active on social media, Republican politics, and has been named to PoliticIt’s list of the “Top-50 Utah Political Opinion Leaders” on Twitter. You can reach him directly at dan.burton@gmail.com

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