Obamacare and the Unconstitutional Revolution

 

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

There are 35 comments.

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  1. Scarlet Pimpernel Member

    Well said. 

    On the other side, there is his flip-flop on the Dream Act. Initially he said he could not simply do it by executive fiat. But then he did so.

    • #1
    • July 9, 2013, at 3:42 AM PDT
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  2. Hammer, The Member

    I suppose the logical follow up question is: what can anyone do about it? Who has standing bring a case against the executive?

    • #2
    • July 9, 2013, at 3:54 AM PDT
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  3. MJBubba Inactive

    Whatever happened to the talk about Arizona filing a lawsuit against President Obama for specific performance to require enforcement of immigration law?

    Who would have standing to sue Obama for specific performance of Obamacare? Who would want to?

    Could Congress file such a lawsuit?

    • #3
    • July 9, 2013, at 4:09 AM PDT
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  4. MJBubba Inactive

    Whatever happened to the talk about a lawsuit to halt Obamacare on the basis that it passed the House without touching all the bases that are required for taxing legislation? (It is in force now because Justice Roberts found it to be a tax, but when it passed the House the Obama Administration was loudly proclaiming that it was not a tax.)

    • #4
    • July 9, 2013, at 4:11 AM PDT
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  5. Scott R Member
    Ryan M: I suppose the logical follow up question is: what can anyone do about it? Who has standing bring a case against the executive? · 1 minute ago

    Maybe a person who was counting on being offered health insurance by his employer in 2014 due to the ACA but now will not be, especially since the ACA mandates he get coverage somehow in 2014. (Supposedly the individual mandate is still going to be enforced. We’ll see.)

    • #5
    • July 9, 2013, at 4:12 AM PDT
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  6. Profile Photo Member

    President Reagan signed, and the U.S. Senate has duly ratified, an international treaty against torture, giving it the force of U.S. law. The treaty obligates the United States to investigate and prosecute all instances of torture.

    From Reagan’s signing statement:

    The United States participated actively and effectively in the negotiation of the Convention. It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.

    The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called “universal jurisdiction.” Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.

    Does Professor Yoo regard the duly signed and ratified Torture convention to be legally binding?

    • #6
    • July 9, 2013, at 4:16 AM PDT
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  7. Dr. Strangelove Thatcher

    I’ve been a Tea Party leader and I have little patience for those who are on my side of the argument who begin yelling about impeaching presidents for reasons that are little more than a very strong disagreement with the President’s policies. Put another way, impeachment cannot be about preventing a President from implementing policies you cannot stand; you lost that option when the guy you opposed won the election. (Elections have consequences, and all of that.)

    That said, in my view Obama’s refusal to enforce the law seems to me to be an impeachable offense yet I haven’t heard the first word from the politician classes that impeachment has to be considered for the violation of the Take Care clause. Is it not being discussed because I am wrong about this? If so, why? If not, what are they waiting for? Doesn’t Congress has an overwhelming interest in preventing political nullification of laws by the Executive branch?

    • #7
    • July 9, 2013, at 5:09 AM PDT
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  8. BrentB67 Inactive

    Great discussion and analysis. 

    Who is going to hold him accountable? Boehner and Co.?

    That’s what I thought, nothing to see here.

    • #8
    • July 9, 2013, at 5:11 AM PDT
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  9. Nick Stuart Inactive
    John Hendrix: 

    That said, in my view Obama’s refusal to enforce the law seems to me to be an impeachable offense yet I haven’t heard the first word from the politician classes that impeachment has to be considered for the violation of theTake Careclause.

    Boehner’s leverage against being the target of the IRS, local prosecutorial abuse (remember Tom DeLay?), frivilous lawsuits (a la Palin), or some skeleton in his closet getting out somehow (Henry Hyde) is not acting. Not naming a special counsel, not naming a select committee, not allowing an impeachment movement to gain a foothold.

    Besides, as long as the Democrats control the Senate, there is absolutely not the remotest possibility whatever of conviction and removal even if the House were to impeach. Why start something you know can never come to fruition?

    Better to secure a slice of the pork pie and a place for you and your immediate family while the getting is good. Let posterity be damned and look after itself as best it can.

    • #9
    • July 9, 2013, at 5:23 AM PDT
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  10. Hammer, The Member
    Conor Friedersdorf: The treaty obligates the United States to investigate and prosecute all instances of torture.

    From Reagan’s signing statement:

    The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called “universal jurisdiction.” Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.

    Does Professor Yoo regard the duly signed and ratified Torture convention to be legally binding?

    hahaha – I think I understand what you’re trying to do, here… But the “gotcha” isn’t all that powerful. 1) this is referring to a specific sort of action, and not the one you’re alluding to, 2) the law of treaties is very different from laws that govern the relationship between president and congress, 3) do you think that the US is not currently investigating and prosecuting “torturers found in its territory?”

    I’m having a hard time seeing how this comment relates, even remotely, to what we are here discussing.

    Please elaborate.

    • #10
    • July 9, 2013, at 5:30 AM PDT
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  11. Scott R Member
    Conor Friedersdorf: President Reagan signed, and the U.S. Senate has duly ratified, an international treaty against torture, giving it the force of U.S. law. The treaty obligates the United States to investigate and prosecute all instances of torture.

    From Reagan’s signing statement:

    The United States participated actively and effectively in the negotiation of the Convention. It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.

    The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called “universal jurisdiction.” Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.

    Does Professor Yoo regard the duly signed and ratified Torture convention to be legally binding? · 13 hours ago

    One contributor passive aggressively trolling another contributor re a pet issue unrelated to the topic at hand. How petty. How childish.

    • #11
    • July 9, 2013, at 6:07 AM PDT
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  12. Western Chauvinist Member
    Ryan M
    Conor Friedersdorf: The treaty obligates the United States to investigate and prosecute all instances of torture.

    From Reagan’s signing statement:

    The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called “universal jurisdiction.” Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.

    Does Professor Yoo regard the duly signed and ratified Torture convention to be legally binding?

    hahaha – I think I understand what you’re trying to do, here… But the “gotcha” isn’t all that powerful. 1) this is referring to a specific sort of action, and not the one you’re alluding to, 2) the law of treaties is very different from laws that govern the relationship between president and congress, 3) do you think that the US is not currently investigating and prosecuting “torturers found in its territory?”

    I’m having a hard time seeing how this comment relates, even remotely, to what we are here discussing.

    Please elaborate.

    Yes, speaking of torture… tortured arguments.

    • #12
    • July 9, 2013, at 6:14 AM PDT
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  13. T-Fiks Member

    As I commented in an early response, Obama has, by his overt disrespect for the constitution, made state nullification of gun laws and the ACA so much more legitimate. I hope some place like Texas or Arizona tries it.

    • #13
    • July 9, 2013, at 6:14 AM PDT
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  14. KC Mulville Inactive

    George Will has been hammering the same issue

    Although the Constitution has no Article VIII, the administration acts as though there is one that reads: “Notwithstanding all that stuff in other articles about how laws are made, if a president finds a law politically inconvenient, he can simply post on the White House Web site a notice saying: Never mind.”

    The textbook says that the remedy is a “balance of power.” In this case, it means that Congress has the power to oppose the president. 

    But the Constitution’s remedy was based on the assumption that Congress would act as if it had a unified interest, and that its power was based on its role as a Constitutional branch. Madison assumed that the Congress would zealously protect its power.

    That’s a relic. Congress isn’t a unified branch. It’s simply a diminished venue for each party to bray at each other. So long as the Senate and the president belong to the same party, the Congress is only Igor to the White House’s Dr. Frankenstein. The president can’t be forced to do anything.

    • #14
    • July 9, 2013, at 6:21 AM PDT
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  15. Larry3435 Member

    Under the precedent of Train v. City of New York, there seems to be a solid legal basis for challenging the President’s refusal to enforce the law, and I think any individual who does not receive the insurance required under the employer mandate would have standing to sue.

    The interesting question is whether such a suit could be brought directly against an employer who, in reliance on the President’s position, fails to provide insurance under the employer mandate. That kind of depends on whether the penalty for failure to provide the insurance is viewed as a fine or a tax. If it is a fine, the failure to provide insurance is still illegal. For example, it is not legal to park in front of a fire hydrant just because you are willing to pay the fine. Your car still gets towed. Courts may have the power to enforce the employer mandate directly in an employee vs. employer lawsuit.

    • #15
    • July 9, 2013, at 6:31 AM PDT
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  16. Retail Lawyer Member

    Prof Yoo,

    Mario Loyola has also written about this problem (http://www.nationalreview.com/corner/352780/constitution-pandoras-box-mario-loyola) and he thinks there is nothing to be done about it. What do you think? It really bothers me at some fundamental and deep level. The first line of defense is Congress. I have several times written my Senators (Feinstein and Boxer) and my Rep (Eshoo) when Obama began this disturbing revolution. At least one of them is lacks the intelligence to understand the issue, although I wrote clearly. Two of them responded, although both responses were unresponsive to my concerns. They don’t seem to mind Obama usurping their power and role – but then, he is on their side, and I doubt that many of their constituents see a problem – until it comes around to bite them. I am extremely disappointed by my representatives, and the Republican leadership as well for not resisting.

    So now we are a nation ruled by men (excuse me, “persons”) rather than laws. This really is a revolution – the fundamental transformation – it is enormous – and I doubt this will end well.

    • #16
    • July 9, 2013, at 6:54 AM PDT
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  17. billy Inactive

    The actions of the next president will be crucial. Obama will be the anomaly or the precedent.

    • #17
    • July 9, 2013, at 7:01 AM PDT
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  18. Mike Rapkoch Member

    The only real remedy would be impeachment on grounds the President has willfully violated his terms of office by usurping legislative authority in violation of the Constitution.Other than that, and I am not the least confident such an argument would fly, I do not see an answer. Moreover, impeachment would be a pointless device as, even if the House were to pass Articles of Impeachment, conviction in the Senate would be a pipe dream. 

    • #18
    • July 9, 2013, at 7:18 AM PDT
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  19. Mike Rapkoch Member

    Do we hear the bell tolling?

    • #19
    • July 9, 2013, at 7:19 AM PDT
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  20. Neil Hansen (Klaatu) Inactive
    Conor Friedersdorf: President Reagan signed, and the U.S. Senate has duly ratified, an international treaty against torture, giving it the force of U.S. law. The treaty obligates the United States to investigate and prosecute all instances of torture.

    Does Professor Yoo regard the duly signed and ratified Torture convention to be legally binding? · 3 hours ago

    Have you read the memos Prof Yoo prepared concerning the legality of the enhanced interrogation techniques? He spent quite a bit of time analyzing the statute that defined torture for purpose of that treaty.

    • #20
    • July 9, 2013, at 7:35 AM PDT
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  21. Philopus Member

    It seems to me that much of our prosperity in the USA is made possible by a pervasive respect for the rule of law. Indeed, I believe, Capitalism can only work when contracts entered into, can be reasonably expected to be fulfilled and that or legal system will enforce said contracts.

    Looking at the behavior of the Progressives over the years, it seems that they are effectively undermining the most critical aspect of our prosperity; the rule of law. Likewise, if you think his ultimate goal is to replace Capitalism with a robust Socialist state, President Obama’s actions make perfect sense.

    • #21
    • July 9, 2013, at 8:07 AM PDT
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  22. Jim Chase Member

    I feel like we’re playing a real-life version of Double Cranko.

     http://www.youtube.com/watch?v=s9pSZaU4bzU

    • #22
    • July 9, 2013, at 8:09 AM PDT
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  23. JSAN Inactive

    As a physician I was upset when I heard that the administration was prop0sing a delay in the implementation (as required by law) of the employer mandate. My reaction was first that once again the government was excusing its favored groups from the law but expecting the individuals to comply. Mr Yoo’s comments have shed light on the real miscarriage that is taking place by this administration flagrant disregard for the constitution. We all remember the famous statement we must pass it to see what’s in it. The framers to prevent this cavalier approach to the enactment of laws gave us article II section 3. This executive mandate makes it imperative that debate and understanding take place before inacting laws, otherwise you must live with it. This was the problem that Athens faced when it would reverse decisions after inacting them leading to all manner of misdirections. As classical scholars, our founding fathers were well aware of the history of this perilous approach. This administration has turned things around and feels free to make changes in laws at its whim rather than live by the laws. King George would be proud

    • #23
    • July 9, 2013, at 8:28 AM PDT
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  24. outstripp Inactive

    Impeachment anyone?

    • #24
    • July 9, 2013, at 8:32 AM PDT
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  25. Nick Stuart Inactive
    outstripp: Impeachment anyone? · 2 minutes ago

    President Biden? 

    • #25
    • July 9, 2013, at 8:36 AM PDT
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  26. Doug Scott Inactive

    Thanks again for the legal insight, John.

    President Obama acts like he has some sort of Magic Line Item Veto Pen. He not only picks and chooses which laws and parts of laws to enforce, he writes laws that have never been passed (i.e. – The Dream Act). And the beauty of it all is that he never even has to bother with Congress or the will of the People.

    Pretty neat tool if you can find one.

    • #26
    • July 9, 2013, at 9:40 AM PDT
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  27. Blitter Inactive
    Nick Stuart
    outstripp: Impeachment anyone? · 2 minutes ago

    President Biden? · 34 minutes ago

    What’s to make them stop there? President Boehner?

    • #27
    • July 9, 2013, at 9:57 AM PDT
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  28. Starve the Beast Inactive

    Any constitution, no matter how thoughtfully constructed, only works if the electorate is paying attention.

    Stop a hundred people on the street and ask them which one of the laws Obama is refusing to enforce is the biggest problem. 96 of the won’t have any idea what you’re talking about.

    Now, let George Bush pull this same stuff. The New York Times and most other major papers will run nonstop outraged articles and op-eds about the separation of powers. Network news and CNN will lead with it every night. So will Jon Stewart and the late-night comedians. Celebs will do special media events about how important that Constitution thingie is.

    Now ask those hundred people again. That same 96% will now be able to tell you what a travesty it is that George Bush refuses to execute his constitutional obligations.

    The left owns the echo chamber. I don’t know if there’s a legal phrase for “echo chamber-ocracy”, but there should be.

    • #28
    • July 9, 2013, at 10:21 AM PDT
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  29. Michael Minnott Member

    In reference to the above comment, an “Echo-Chamber-Ocracy” is simply an oligarchy with the media as one of the oligarchs.Although I think Yoo is nominally correct, the problem has been the same with all modern presidents. There are so many laws, written so broadly that virtually everyone is guilty of breaking them. Add to this the leeway judges grant prosecutors, plus the practice of “charge stacking.” Presidents routinely use the DOJ to enforce the laws they like and ignore the ones they don’t. Since we’re all guilty of something now, enforcement is capricious. We have de-facto lawlessness as a result of too many laws enforced on a whim, which is surely tyranny.It would be warm and fuzzy to wag a finger at the other side, but we have made too many excuses for politicians on our side. I think you’re kidding yourself to think Bush was much better. Obama may be worse, but only as a matter of degree.

    • #29
    • July 9, 2013, at 11:58 AM PDT
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  30. John Grant Contributor

    Exactly. Now did you ever mention to President Bush that he had a duty to execute the laws regarding immigration? He couldn’t seem to bother with this one.

    I notice that the conserative commentariat is all over this one, but the refusal of successive Presidents to execute the 1986 Act has basically gone unnoticed or at least uncommented on.

    • #30
    • July 10, 2013, at 1:03 AM PDT
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