JonathanTurley November 15 2013
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 acolumn 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.