Presidential Nullification of Obamacare

An editorial in today’s Wall Street Journal decries a pattern of abuse by President Obama, who the paper finds guilty of the offense “of selectively enforcing the law.” There is much truth to this general proposition, but its broad-based critique overlooks an important question of principle: just how do we determine what counts as “selective enforcement?”

To see why this matters, consider the following two cases. First, there was the President’s decision to suspend the implementation of the employer mandate under Obamacare, which was powerfully attacked by Professor Michael McConnell in his July 2013 op-ed in the Journal, “Obama Suspends the Law.” Second, there was the array of subsequent decisions relating to the individual mandate, such as suspending the law’s required minimum coverage provisions for people whose plans otherwise would have been cancelled and giving those who lost their insurance a “hardship exemption” from the mandate’s fines.

A straightforward textual argument in favor of the Journal’s uniform condemnation is that the Constitution requires the President to take care that the law be faithfully executed, which leaves him no discretion on the question of whether the law’s provisions should be followed, but some discretion—and, in the case of the administrative state, much discretion—on how it should be implemented.

Notwithstanding this tidy account of the law, I think that, even for constitutional purposes, an important distinction should be drawn between the early decision to suspend in its entirety the employer mandate and the subsequent decisions to selectively alter the implementation of the individual mandate in ways that are flatly inconsistent with the statute.

Think first of what would have happened if the president had decided to faithfully execute Obamacare in its entirety. Much of the American health care system would have come to a grinding halt. The requirement that the president faithfully execute the laws presupposes, at a minimum, that there is some capacity to implement the rules. In this case, however, the law to be implemented was so fundamentally flawed that the so-called implementation would have failed abjectly in all its objectives, creating massive dislocations for countless American citizens.

It is foolhardy to demand that a President execute the impossible. All sorts of strict contractual obligations are waived in cases where it is impossible to execute them in proper form, and some discretion on this point has to be accorded the President. We should be relieved that Mr. Obama, having been foolish enough to support the health care reform, had the modicum of humility necessary to suspend some of its most ambitious and perverse provisions.

The situation is exactly the opposite with the constant manipulation of the individual mandate.  Here, the changes the President has made have left him attempting to enforce a newly-designed program that—because it has been so dramatically revised by the executive branch—essentially has no congressional authorization whatsoever.

Obama should, in my view, have the same option with the individual mandate that he had with the employer mandate: to mercifully postpone its entire implementation for as long as it takes to get the system (foolish as it is) up and running. (As an aside, it should be noted that simply demonstrating that people can enroll in a plan isn’t enough to say the system is working. At present, there is no evidence that the computer systems are effectively handling things like certification and payment, which are necessary to make coverage actually take effect.) It would be fine to stop this exercise in futility before it really hurts people.

Instead of that kind of sweeping suspension, however, President Obama is selectively implementing some provisions, but not others. As a matter of constitutional law, this is different in kind. It represents an effort to make new legislation without constitutional approval and should be condemned in the harshest possible terms. The distinction that I am making here has real foundations in the difficult doctrine of unconstitutional conditions. It is commonly said that the “greater power” to exclude carries with it the “lesser power” to exclude selectively. 

Unfortunately, the greater/lesser distinction gets it exactly backwards. A general uniform policy of exclusion or inclusion is far less subject to government abuse than the selective power to favor your friends and punish your enemies. It is a lesser power, as it were, to be able to exclude all heavy vehicles from certain public roads. It is a greater power to decide on a case-by-case basis which trucks can use the facilities and which not. 

The original Constitution was drafted at a time when it was inconceivable that the federal government could exercise all-consuming power over the economic life of the nation. With more limited mandates, faithful execution of the law is a relatively easy task. But with the rise of the modern administrative state, faithful execution is often beyond the power of government, at which point total program suspension may well be in order. Remember, the president did not suspend the program because he was opposed to it. This is not a case of executive nullification of legislative action. Rather, Obama engaged in the suspensions because he knew that the law could not work as promised. 

By way of contrast, the situation would be different if his only reason for suspension was that he disliked the rules (which is surely the case with his selective refusal to enforce the immigration laws as they apply to certain classes of undocumented aliens). Impossibility is a narrow justification for program-wide suspension. But it covers both the individual and employer mandates under the health care law—both of which should have been struck down as unconstitutional in the first place.

  1. Aaron Miller

    The problem is not authority but power. What are the consequences when a President oversteps his authority? There are none. Perhaps SCOTUS will consider such an abuse a year later and nullify any ongoing enforcement, but the President is free to disregard legal boundaries repeatedly without risk. The absence of punishment beyond the electoral threat renders our laws impotent.

  2. Nick Stuart

    Excellent Alpha++ Brainiac level disquisition as usual by Prof. Epstein.

    What I missed was a recommendation as to what to do about it?

    Even if the Republicans come out of 2014 with 70 seats in the Senate Obama won’t be convicted in the extremely remote chance the House impeaches him.

    Does anybody even have standing in Federal Court to challenge this?

  3. dittoheadadt

    “…its broad-based critique overlooks an important question of principle: just how do we determine what counts as “selective enforcement?”

    What difference, at this point, does it make?  We do NOT have an opposition party loyal to the Constitution and willing to do what it’s empowered to do to stop the “selective enforcement.”

    Angels on the head of a pin, and all that.

  4. barbara lydick

    Possible solution: Suggest the Prez have a spine transplant which may lead him to admit to the tangled Constitutional mess we’re in and then admit that his Rube Goldberg approach may have been more destructive to millions of people, not to mention the entire health care system, than what it sought to replace. He might then summon Harry and the gang and suggest they have a vote in the Senate to overturn the entire law.  The first thing after that is to help those who are truly too poor to afford insurance.  The number of people would be a true accounting (approx. 5-6 million), not the inflated figures thrown about in the early days before the law was passed.  Monies to fund this could easily be found from the dismantling of the massive bureaucracies established to oversee this train wreck. 

    Then slowly, with much deliberation to account for consequences of actions, work on those areas of the healthcare system that need adjusting – which in a sane world would be from a free market standpoint.

  5. James Gawron

    Dr. Epstein,

    Remember, the president did not suspend the program because he was opposed to it. This is not a case of executive nullification of legislative action. Rather, Obama engaged in the suspensions because he knew that the law could not work as promised. 

    With all due respect, if you have read Avik Roy’s original piece on the study done in 2010 by the ACA people themselves and placed in the federal register, Obama doesn’t have a leg to stand on that he wasn’t aware that the program would fail or that he continued to deceive everyone in support of it.  Add to this the automatic bailout of the insurance industry as co-conspirators.  This is the Monopolization of Powers (my term for the willful flouting of Separation of Powers) in the extreme. 

    I don’t think splitting hairs legally has anything to do with this.  The blind lock step democratic controlled senate is keeping Obama from being impeached. That is the only relevant fact.

    Regards,

    Jim

  6. J.Maestro

    Zooming out this way, we see the three branches of the federal government refusing to safeguard the bright lines that are supposed to separate them.

    But zoom out further — how is that federal entity getting on with its supposedly co-equal holders of sovereignty? Well, the States are bought off — operating as wholly-owned subsidiaries. And the People… this part is frightening. Do voters actually want Washington in general, and POTUS in particular, to operate as a benevolent despotism?

    Short version of the question: in an environment where the electorate itself treats the rule of law as both incomprehensible and optional, does SCOTUS have the practical authority to keep a popularly-elected tyrant in check?

  7. Kozak

    We no longer have laws Comrades, we have Diktats and Ukase from Dear Leader. Republicans please note this when considering a Comprehensive Immigration LAW.

  8. George Coussmaker

    Yes, of course! Who has any doubt about the president’s abuses?  I’m getting very sick of people talking about the list of abuses. He long ago exceeded anything ever done by Nixon, and our national press is just as guilty.

    What we need is an action plan to block this tyranny.

  9. J.Maestro

    It is foolhardy to demand that a President execute the impossible.

    That’s not an argument for writing ourselves new Article II powers — it’s an argument for voiding the flawed statute.

    Laws impossible to execute are hardly different from laws that are vague or overbroad. The public has no idea what’s required and enforcement will only ever be selective and/or arbitrary.