Like King James II, the president decides not to enforce laws he doesn't like. That's an abuse of power.
By Michael W McConnell
President Obama's
decision last week to suspend the employer mandate of the Affordable
Care Act may be welcome relief to businesses affected by this provision,
but it raises grave concerns about his understanding of the role of the
executive 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.
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.
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. In June of last year, for example, the
administration stopped initiating deportation proceedings against some
800,000 illegal immigrants who came to the U.S. before age 16, lived
here at least five years, and met a variety of other criteria. This was
after Congress refused to enact the Dream Act, which would have allowed
these individuals to stay in accordance with these conditions. Earlier
in 2012, the president effectively replaced congressional requirements
governing state compliance under the No Child Left Behind Act with new
ones crafted by his administration.
The president defended his suspension
of the immigration laws as an exercise of prosecutorial discretion. He
defended his amending of No Child Left Behind as an exercise of
authority in the statute to waive certain requirements. The
administration has yet to offer a legal justification for last week's
suspension of the employer mandate.
Republican opponents of ObamaCare
might say that the suspension of the employer mandate is such good
policy that there's no need to worry about constitutionality. But if the
president can dispense with laws, and parts of laws, when he disagrees
with them, the implications for constitutional government are dire.
Democrats too may acquiesce in Mr.
Obama's action, as they have his other aggressive assertions of
executive power. Yet what will they say when a Republican president
decides that the tax rate on capital gains is a drag on economic growth
and instructs the IRS not to enforce it?
And what of immigration reform? Why
bother debating the details of a compromise if future presidents will
feel free to disregard those parts of the statute that they don't like?
The courts cannot be counted on to intervene in cases like this. As the Supreme Court recently held in Hollingsworth v. Perry,
the same-sex marriage case involving California's Proposition 8,
private citizens do not have standing in court to challenge the
executive's refusal to enforce laws, unless they have a personal stake
in the matter. If a president declines to enforce tax laws, immigration
laws, or restrictions on spending—to name a few plausible examples—it is
very likely that no one will have standing to sue.
Of all the stretches of executive
power Americans have seen in the past few years, the president's
unilateral suspension of statutes may have the most disturbing long-term
effects. As the Supreme Court said long ago (Kendall v. United States,
1838), allowing the president to refuse to enforce statutes passed by
Congress "would be clothing the president with a power to control the
legislation of congress, and paralyze the administration of justice."
Mr. McConnell, a former judge on the U.S. Court of
Appeals for the Tenth Circuit, is a professor of law and director of the
Constitutional Law Center at Stanford Law School and a senior fellow at
the Hoover Institution.
Related: What If A President Romney Had Suspended Obamacare?
http://tinyurl.com/mlnhmat
1 comment:
So, can we impeach him now??
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