Obama Suspends the Law

imageWall Street Journal – by Michael 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.

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.


3 thoughts on “Obama Suspends the Law

  1. The Constitution provides:
    Art. II,
    “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; .
    _____________________________________________ . . .”
    The definition for employer, employee, contained in the Affordable Care Act is provided by the Employees Retirement Income Security Act (ERISA) Public Law 93-406, for foreign affiliates, which amended section 3121(L) of Title 26, INTERNAL REVENUE CODE. The President is authorized to wave the employer mandate, based on the International labor Organization, since it has no application to a domestic employer.
    Regulations for Public Law 111-148, the Patient Protection and Affordable Care Act,
    Code of Federal Regulations]
    [Title 29, Volume 9]
    [Revised as of July 1, 2002]
    From the U.S. Government Printing Office via GPO Access
    [CITE: 29CFR2590.731]

    [Page 636-637]



    The Patient Protection and Affordable Care Act, Public Law 111-148, was enacted on March 23, 2010; the Health Care and Education Reconciliation Act of 2010, Public Law 111-152, was enacted on March 30, 2010 (collectively, the Affordable Care Act). The Affordable Care Act reorganizes, amends, and adds to the provisions of part A of title XXVII of the Public Health Service Act (PHS Act) relating to group health plans and health insurance issuers in the group and individual markets. The Affordable Care Act adds section 715(a)(1) to the *Employee Retirement Income Security Act (ERISA) and section 9815(a)(1) to the Internal Revenue Code (Code) to incorporate the provisions of part A of title XXVII of the PHS Act into ERISA and the Code, and make them applicable to group health plans.
    5. Delegation of Authority and Assignment of Responsibilities
    a. Except as hereinafter provided, the Assistant Secretary for Employee Benefits Security is delegated the authority (including the authority to re-delegate) and assigned the responsibilities of the Secretary of Labor:
    (1) under the following statutes, including any amendments:
    (i) The *Employee Retirement Income Security Act of 1974, as amended, except for subtitle C of Title III and Title IV (29 U.S.C. §§ 1001-1232);
    (ii) the Welfare and Pension Disclosure Act of 1958, as amended Pub. L. 85-836, 72 Stat. 997; Pub. L. 86-624, 74 Stat. 417; Pub. L. 87-420, 76 Stat. 35;
    (iii) The Federal Employees’ Retirement System Act of 1986 (5 U.S.C. §§ 8401-8479); and
    (iv) as directed by the Secretary, such additional Federal acts similar to or related to those listed in paragraphs (i) through (iii), above, that from time to time may assign additional authority or responsibilities to the Secretary.
    6. Reservation of Authority
    a. The submission of reports and recommendations to the President and the Congress concerning the administration of the statutes listed in paragraph 5.a.(1) of this order and responsibilities under Subtitle C of Title III of ERISA are reserved to the Secretary. The Pension Benefit Guaranty Corporation carries out responsibilities under Title IV of ERISA.
    Listed below is the 1974 amendment, ERISA, to section 3121(L) of Title 26, INTERNAL REVENUE CODE
    26 U.S.C. §406. Employees of foreign affiliates covered by section 3121(L) agreements

    Subtitle A – Income Taxes
    Subchapter D – Deferred Compensation, Etc.
    Subpart A – General Rule
    Sec. 406 – Employees of foreign affiliates covered by section 3121(l) agreements
    Amendment by section 1016(a)(4) of Pub. L. 93–406 applicable, except as otherwise provided in section 1017(c) through (i) of Pub. L. 93–406, for plan years beginning after Sept. 2, 1974, but, in the case of plans in existence on Jan. 1, 1974, amendment by Pub. L. 93–406 applicable for plan years beginning after Dec. 31, 1975, see section 1017 of Pub. L. 93–406, set out as an Effective Date; Transition of Rules note under section 410 of this title.
    B.T.W. listed below is the authority for Willful failure to file, the term includes, is limited to the example, foreign affiliates.
    1. Title 26 USC Sec. 7203, Willful failure to file
    Oct 2, 2009 – 865(g), which includes the definition of “taxpayer” as defined at 26 CFR … made by the “American employer” under title 26 USC Sec. 3121(l)).

  2. “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.”

    You want exercises, then go to a fitness center, you monkey-faced bastard. You want to do your job, then end all of these unconstitutional policies and do your job according to the Constitution.

    Unfortunately, you are just a puppet and have no say in the matter, so just point us to your elitist friends/advisers/masters and we’ll do the rest. In the meantime, don’t go anywhere.

  3. Since I’m not a lawyer, I can’t follow the logic that employees and employers would be “foreign affiliates.” But common sense indicates that law selectively enforced becomes not the rule of law but the law being used as a political weapon.

    The first thing I wondered was, if employers were going to be exempt, what was the status of their employees? Wouldn’t they be subject to a fine-tax? But the next thing out was that the means testing wasn’t being implemented. So, these employees can go to the exchanges and receive taxpayer subsidies for their coverage. This will surely drive up the costs to the taxpayer, and yet those employees can have no assurance the subsidy won’t be clawed back the next year. It puts them in quite a spot.

    There is another issue with equality under the law. The entire “health” “care” “reform” revolves around protecting the racket of insurance pools, a byzantine system of charging some people one price for care and others another. Logically, by the time the government mandates the purchase of insurance, shouldn’t the law require an equal product? Furthermore, why should the law be used to enforce the purchase of insurance when what was debated and desired was access to care, not insurance?

    Since proponents of this abomination likened it to mandated car insurance, I’d extend that analogy by pointing out that the right to operate a car on public roads was the desired result. In the case of mandatory health insurance, it is as if some were forced to buy tires when they had no car to put them on. Some get cars with tires (“gold” coverage), some get a car with two tires (silver), and some just get tires (bronze). Although the bronze level of insurance was supposed to have been done away with in the reform, it continues to be what many will be able to afford with their mandated purchase. It leaves them far short of accessing care.

    Meanwhile, billions of dollars, above and beyond actual costs, continue to be skimmed from the system annually. We need fewer insurance execs and more forensic accountants if we are ever going to make healthcare a part of the economy instead of the anchor sinking it.

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