Those who oppose Obamacare may well be glad that the President keeps delaying the implementation of parts of the law (namely, the employer mandate and the limits on out-of-pocket expenses). But there is a deeper issue: The law says that these measures are to go into effect in 2014. But now the President says, “no they won’t.” By what authority can the President just change a Constitutionally-enacted law?
George Will says that the President’s increasing habit of by-passing Congress, ignoring laws, and legislating by Executive fiat is an example of the flagrantly unconstitutional principle affirmed by Richard Nixon : “When the president does it, that means it is not illegal.”
Explaining his decision to unilaterally rewrite the Affordable Care Act (ACA), he said: “I didn’t simply choose to” ignore the statutory requirement for beginning in 2014 the employer mandate to provide employees with health care. No, “this was in consultation with businesses.”
He continued: “In a normal political environment, it would have been easier for me to simply call up the speaker and say, you know what, this is a tweak that doesn’t go to the essence of the law. . . . It looks like there may be some better ways to do this, let’s make a technical change to the law. That would be the normal thing that I would prefer to do. But we’re not in a normal atmosphere around here when it comes to Obamacare. We did have the executive authority to do so, and we did so.”
Serving as props in the scripted charade of White House news conferences, journalists did not ask the pertinent question: “Where does the Constitution confer upon presidents the ‘executive authority’ to ignore the separation of powers by revising laws?” The question could have elicited an Obama rarity: brevity. Because there is no such authority.
Obama’s explanation began with an irrelevancy. He consulted with businesses before disregarding his constitutional duty to “take care that the laws be faithfully executed.” That duty does not lapse when a president decides Washington’s “political environment” is not “normal.”
When was it “normal”? The 1850s? The 1950s? Washington has been the nation’s capital for 213 years; Obama has been here less than nine. Even if he understood “normal” political environments here, the Constitution is not suspended when a president decides the “environment” is abnormal.
Neither does the Constitution confer on presidents the power to rewrite laws if they decide the change is a “tweak” not involving the law’s “essence.” Anyway, the employer mandate is essential to the ACA. . . .
In a 1977 interview with Richard Nixon, David Frost asked: “Would you say that there are certain situations . . . where the president can decide that it’s in the best interests of the nation . . . and do something illegal?”
Nixon: “Well, when the president does it, that means it is not illegal.”
Frost: “By definition.”
Nixon: “Exactly, exactly.”
Nixon’s claim, although constitutionally grotesque, was less so than the claim implicit in Obama’s actions regarding the ACA. Nixon’s claim was confined to matters of national security or (he said to Frost) “a threat to internal peace and order of significant magnitude.” Obama’s audacity is more spacious; it encompasses a right to disregard any portion of any law pertaining to any subject at any time when the political “environment” is difficult.