President Obama’s decision to delay until 2015 the enforcement of the Affordable Care Act’s employer mandate (stipulating that all businesses with 50 or more employees must offer health insurance) is yet another example of his unconstitutional revolution in executive power.
Contrary to the complaints one hears from Rand Paul and other libertarians, the revolution has not occurred in foreign affairs and national security. Instead, Obama has dramatically changed the presidency by claiming the right to refuse enforcement of laws with which he disagrees. This newest development only compounds Obama’s injury to the Constitution by refusing to enforce the immigration and welfare reform laws.
Under Article II, Section 3 of the Constitution, the president has the duty to “take Care that the Laws be faithfully executed.” The framers included this provision to make sure that the president could not simply cancel legislation he didn’t like, as had the British king. Since the days of Machiavelli, through Hobbes, Locke, and Montesquieu to the Framers, executing the laws (along with protecting national security) has formed the very core of the executive power. As Alexander Hamilton explained in Federalist 75: “The execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate.”
Under this understanding of presidential power, President Obama may not refuse to carry out an act of Congress simply because of disagreement. The Framers gave the president only two tools to limit unwise laws. First, the president has a qualified veto over legislation, which, Hamilton argued in Federalist 73, would not just serve as a “shield to the executive” but also “[furnish] an additional security against the enaction of improper laws.” Second, the Framers gave the president the right of pardon, which he could use to free those unjustly convicted. President Obama has not made use of either of these constitutional powers here.
A president may decline to carry out a congressional command in only two situations.
First, the president may and should refuse to execute congressional statutes that violate the Constitution, because the Constitution is the highest form of law. If the Affordable Care Act violated constitutional rights of individuals or the powers of a branch of government — a contention the Administration strenuously argued against in the Supreme Court — President Obama might claim he could decline enforcement. That obviously is not the case here.
Second, the President has discretion to pick and choose which cases to prosecute — a power called prosecutorial discretion — because the executive does not have the time and resources to pursue every violation of every federal law, big or small. Here, however, Obama has claimed the right not to enforce every violation of the law, not just the unimportant ones.
The bottom line: the president doesn’t have a legal leg to stand on