The Lawless President

Published July 10, 2013

The duties of the President of the United States are spelled out in Article II, Section 3 of the Constitution, which states, inter alia, that the President “shall take Care that the laws be faithfully executed.” As Stanford Law Professor and former federal judge Michael McConnell explained in yesterday’s Wall Street Journal, “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.”

Section 1513(d) of the Unaffordable Care Act (aka “Obamacare”) states unequivocally, “The amendments made by this section shall apply to months beginning after December 31, 2013.” In other words, the provisions of Obamacare become fully effective in 2014, as a matter of duly enacted federal law.

But over the long Fourth of July weekend, in a “Never Mind” moment, the Obama Administration announced, through a Deputy Assistant Secretary of the Treasury, that contrary to federal law, the employer mandate of Obamacare shall not become fully effective in months beginning after December 31, 2013, but only in months beginning after December 31, 2014. Making the announcement through such a low level Administration official to me says that Obama has contempt for the American people, and for the rule of law.

Barack Obama: Lawbreaker
But it does not matter who announces it. The President is the one responsible. And the announcement constitutes the assumption of authoritarian powers by President Obama.

McConnell explained the history behind Article II, Section 3 of the Constitution:

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 led 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. 

McConnell further explained the modern manifestation of this legal history. Official, governing opinions of the Office of Legal Counsel of the U.S. Justice Department state that the President has the power to decline to enforce laws he believes are unconstitutional. “But these opinions have always insisted that the President has no authority…to ‘refuse to enforce a statute he opposes for policy reasons.'” Which includes as well suspending a statute temporarily for political reasons.

The U.S. Supreme Court has backed up these opinions. In 1998, in Clinton v. City of New York, the Court struck down a duly enacted statute passed by Congress that granted line item veto authority to the President to strike out spending items he opposed in Appropriations bills. McConnell explained the reason for the ruling: “The only constitutional power the president has to suspend or repeal statutes is to veto a bill or propose new legislation.” Liberal Justice John Paul Stevens wrote for the Court in Clinton, “There is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes.”

You see now why maybe the announcement was made by a Deputy Assistant Secretary of the Treasury?

Obamacare Chaos
The Obamacare employer mandate was already causing chaos in the jobs market, as reflected in last Friday’s jobs report for June. Irresponsible “mainstream” media frauds were cheerleading the reported 195,000 new jobs reported for last month. But they failed to report the full story, which falls to us to report here.

In the 11 previous recessions since the Great Depression, the economy recovered all jobs lost during the recession an average of 25 months after the recession began. But today, 67 months after the last recession began, the economy under President Obama still has not recovered all the jobs lost during the last recession, which officially ended four years ago. At this same point in President Reagan’s recovery, jobs had soared almost 10 percent higher than when the recession started, which meant a net increase of more than 10 million jobs.

Moreover, all of the net new jobs created last month were part time!Full time jobs actually declined last month by 240,000. As Investor’s Business Daily reported in its Monday edition, “Year to date, only 130,000 full time jobs have been added to our economy. The rest of the jobs – 557,000 – have been part-time.” As a result, the Labor Department reported last Friday that the U-6 unemployment rate, which includes involuntary part-time workers, defined as “individuals working part time because their hours had been cut back or because they were unable to find a full-time job,” soared from 13.8 percent in May to 14.3 percent in June. That soaring unemployment represents not recovery but renewed recession.

This shift to part time work is only further reducing real middle class incomes, which have declined steadily under Obama’s Presidency. The middle class has lost the equivalent of one month’s income a year under President Obama, and with these employment trends, those declining living standards will continue.

 This is directly attributable to the Obamacare employer mandate, which requires employers of 50 full time workers or more to buy the health insurance for their workers that the government specifies they must buy, or pay a $2,000 fine per worker every year. Full time is defined as those working 30 hours a week or more. As a result, many employers are cutting back their workers to 29 hours a week, to avoid the cost increases of Obamacare.

Delaying the employer mandate by one year will not solve this problem, as employers know the Obamacare cost increases are coming. It will just give them more time to rearrange their work forces to further evade Obamacare.

In his State of the Union Address last January, President Obama said, “A growing economy that creates good, middle class jobs – this must be the North Star that guides our efforts.” But this is just more Calculated Deception by President Obama, because his policies are producing directly the opposite of what he pledged.

Suspension of the employer mandate is creating still further Obamacare chaos. Workers are eligible for federal subsidies depending on their income for health insurance they purchase on the Obamacare Exchanges only if their employers do not provide them affordable health insurance meeting all federal requirements. But for now employers will not be required to provide workers with any health insurance. The Obamacare law requires the federal government to verify the insurance employers provide each worker, and each worker’s income, to determine each worker’s eligibility for what health insurance subsidies under the law.

But under a new 600 page “regulation” HHS released last Friday, the federal government for next year is not even going to attempt to determine the eligibility of each worker for Obamacare’s health insurance subsidies. The Exchanges that will be up and running next year are authorized to accept whatever individual workers report regarding their employers’ health insurance and their own income.

Moreover, it is not yet clear how many and what states will even have Exchanges next year. Most states declined to set up their own Exchanges, and have left that responsibility to the federal government and HHS. But the feds seem to be way behind the curve in getting Exchanges even up and running in those states that are not setting up their own.

So the Obama Administration is busily rewriting more of the Obamacare law than the employer mandate, all of which is illegal and unconstitutional under the applicable law and precedents.

A Long Train of Abuses
President Obama’s Obamacare lawlessness is not just one isolated example. He now has a record of a long train of similar abuses of office. Last year, President Obama abdicated enforcement of immigration law against 800,000 illegal immigrants that are subject to deportation under the law, effectively enacting on his own the proposed Dream Act, which Congress has so far refused to pass. Regardless of what you may think about immigration law, that is a recklessly illegal act and abuse of office under the applicable law and precedents as well.

Also in 2012, President Obama, claiming to act on his own authority, eliminated federal requirements on states under the No Child Left Behind Law, and adopted new ones chosen by his Administration instead. He also wiped away statutory requirements regarding work under the 1996 welfare reforms by purported regulation, contrary to the express language of the federal law. He falsely claimed that his regulation was complying with state requests for authority to require more work, but under the 1996 reform law, the states had complete authority already to require all the work they desired. All of this is contrary to applicable law and precedent regarding the President’s duties and authority as discussed above.

The Role of the Tea Party and the Republicans
President Obama’s established record as discussed above quite clearly justifies impeachment on grounds of abuse of office. Watergate established the worthy precedent that the President is subject to the rule of law, just like anybody else. But the Democrats, in regard to Presidents Clinton and Obama, are wiping away that precedent. At this point, based on long practice, Republicans can argue for voter support for their Presidential candidates on the ground that Republican Presidents are subject to the Rule of Law, while Democrat Presidents effectively are not, as Clinton was given a pass for breaking the law, and now Democrats want the same for Obama.

But given the political fiasco over the Clinton impeachment, Republicans do not have the credibility to use that threat to hold Obama accountable to the law either. This is a role that should be embraced by Tea Party leaders instead, in my opinion.

Tea Party leaders should call for Obama’s impeachment on the grounds that he has repeatedly abused the Constitutional requirements and restraints on his office, as discussed above. The Tea Party does not have effective authority to impeach him either. But that does not mean that Tea Partiers cannot hold Obama publicly accountable for his abuses of office, which they have far more credibility with the public to do than the Republicans. Yes, the Tea Party and its leaders will be vilified for doing so. But they are already being vilified to the extent possible. And this does not mean that elected Republican Tea Party related officeholders should not chime in to publicly support Obama’s impeachment for abuses of office as well. This would at least provide some public accountability and check on Obama’s abuses.

The proper and feasible role for Republicans is to go in for the kill on Obamacare even more aggressively now. The Republican House can do that most effectively now by passing an actual replacement for Obamacare.

The Republican House has voted to repeal Obamacare 37 times already. What it has not done is vote for an alternative plan to replace Obamacare. But now they have a chance to pass an alternative plan that would be wildly popular with the public. That would set Obamacare down the road to the dustbin of history, where it belongs.

I drafted up such a plan with John Goodman, President of the NCPA, last year and have discussed it in this space. It would block grant Medicaid back to the states to assure that the poor could obtain essential health coverage, actually far better than Medicaid. It would assure health coverage for the uninsured who were already quite sick with pre-existing conditions, through state High Risk pools. It would extend the same favorable tax treatment for employer provided health insurance to everyone, through a Consumer Choice Tax Credit, regardless of whether they obtain the insurance at work, in an exchange or in the marketplace; whether they work less than 30 hours a week or more; whether their workplace has fewer than 50 employees or more; whether they are in a union or not; and whether their employer provides the insurance or whether they obtain it on their own.

Unlike Obamacare, this plan would actually provide health care for all, with no individual mandate, and no employer mandate, at a savings of $2 trillion over the first 10 years alone. The insurance would be portable, and provide full protection against the development of serious illness, with maximum patient power and control over their own health care, and no government health care rationing and denial of care of any kind. It would create a market where insurers would have full incentives to compete to serve the sick and the healthy.

If the House would pass that replacement for Obamacare, and Tea Party patriots would aggressively call for enforcement of the law against President Obama, for the first time since 2008, conservatives and Republicans would be on the offensive against the new Obama Democrat 1960s style socialism, rather than on the defensive.

[First Published by The American Spectator]