Lawlessness in the Executive

Rule of Law by from The Weekly Standard, September 2, 2013

As was quite clear at the time, the biggest mistake that Mitt Romney’s campaign made in 2012 was not aggressively attacking Obamacare. What may well have been its second-biggest mistake, however, was less noticed: the striking silence in the face of President Obama’s announcement that he would no longer deport illegal immigrants under 30 years of age.

This was pure lawlessness, even by the president’s own earlier admission. When asked at a spring 2011 Univision town hall why he didn’t simply stop the deportation of young illegals via executive order, Obama replied,

With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books. .  .  . Congress passes the law. The executive branch’s job is to enforce and implement those laws. .  .  . There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply, through executive order, ignore those congressional mandates would not conform with my appropriate role as president.

Yet five months before the election, the Obama administration announced that it would no longer deport most illegals under the age of 30 who had entered the United States before adulthood. The main sound emanating from the Romney campaign: crickets.

The Romney camp’s decision to ignore this brazen move was a conscious calculation that, at its core, reflected a lack of faith in the American people. Team Romney thought voters would focus on the perceived merits of Obama’s new decree (which the Romney campaign believed would be popular) and wouldn’t much care that Obama was ignoring the Constitution and violating his oath of office. This miscalculation helped cost Romney the election and emboldened Obama in his lawlessness. But Republicans make similar mistakes on a regular basis, failing to trust in Americans’ devotion to the Constitution and the rule of law.

In truth, Americans do support and believe in the law. A century ago, Woodrow Wilson tried to convince his countrymen that the Founders had gotten it wrong; that the powers of government shouldn’t be separated and checked but rather “coordinated” and “synthesi[zed],” enabling government to “act with straightforward and unquestionable power, .  .  . choosing its policies and making good its authority, like a single organism.” After all, he said, “we shall remain a nation only by obeying leaders.”

This is clearly Barack Obama’s view. But one can say with almost equal certainty that it is not the view of the American people, who were never won over by Wilson’s argument. Republicans would do well to highlight and condemn Obama’s lawlessness, which is largely unprecedented and threatens our constitutional order. They should channel the spirit of Thomas Paine, who wrote, “as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.” Unfortunately, this has not been the case under Obama.

Shortly before July 4, Obama unilaterally suspended for a year Obamacare’s employer mandate—its requirement that most businesses provide government-sanctioned health insurance. In refusing to execute this part of the law (which, according to the statute itself, “shall apply to months beginning after December 31, 2013”), Obama invited the question of whether a future Republican president could simply refuse to enforce, say, Obamacare’s exchange-subsidy provisions (which, by law, “shall apply to taxable years ending after December 31, 2013”). Asked whether his successor could “pick and choose whether they’ll implement your law and keep it in place,” Obama offered an astonishing reply: “I didn’t simply choose to delay this on my own. This was in consultation with businesses all across the country.” Apparently, Obama has rewritten Article II of the Constitution; henceforth the president shall take care that the Laws be faithfully executed unless he and some businessmen decide differently. As a Tammany machine politician famously said, “What’s the Constitution among friends?”

When the House of Representatives proposed legislation later in July to delay Obamacare’s employer mandate by law, in the wake of Obama’s decision to delay it by executive fiat, the Obama White House called the legislation “unnecessary” and promised Obama would veto it. Republicans were nevertheless joined by 35 Democrats in passing that legislation through the House. Several weeks later, Obama—as if having forgotten this initiative—declared that, in “a normal political environment,” he could easily have gotten the House to pass legislation delaying the employer mandate, but “we’re not in a normal political atmosphere,” so he had no choice but to act unilaterally.

After congressional members of both parties denounced Obama’s claim that the president possesses unilateral authority to suspend the law, Obama told the New York Times, “[I]f Congress thinks that what I’ve done is inappropriate or wrong in some fashion, they’re free to make that case. .  .  . But ultimately, I’m not concerned about their opinions—very few of them, by the way, are lawyers, much less constitutional lawyers.”

This is hardly the only extralegal action that Obama, a former part-time constitutional law lecturer, has taken as he tries to boost the flagging prospects of his signature legislation. In an effort to keep insurance costs from rising even more than they are already rising under Obamacare, he suspended the legislation’s mandated caps on out-of-pocket health costs. He also unilaterally suspended the law’s income-verification requirements for its state-based exchanges, which means that massive quantities of taxpayer-funded subsidies will now flow out based on the “honor system.” Meanwhile, the plain text of Obamacare says such subsidies cannot flow through its federally run exchanges (only through its state-run ones), but Obama is ignoring this legal limitation and proceeding as if it didn’t exist. Obamacare also doesn’t provide exchange subsidies for those making over $100,000 a year—but Obama personally (and successfully) lobbied the Office of Personnel Management to rule, contrary to the legislative text, that such subsidies can now flow to a certain subset of those making six figures: those working in Congress.

Obama’s lawlessness has not been limited to immigration and Obamacare. After seeking U.N. rather than congressional authorization to intervene in Libya, he overtly violated the War Powers Act. Offering no pretense that the act is unconstitutional—the only reasonably justifiable basis for ignoring it—he refused to obey the 60-day deadline for gaining congressional authorization for continued use of the armed forces. As ABC News reported at the time, “Experts say this is the first time an American president has defied the War Powers Resolution’s deadline for participation in combat operations without any concurrent steps by Congress to fund or otherwise authorize the role.”

On another front, in an effort to circumvent the advice-and-consent role of the Senate (which was—and is—controlled by his own party), Obama made three “recess” appointments to the National Labor Relations Board (NLRB) while the Senate was in session. A federal appellate court declared the appointments unconstitutional on the basis that recess appointments must be made during recesses. Obama’s press secretary Jay Carney, amazingly, said the decision “does not have any impact.” With the White House’s blessing, the illegally constituted NLRB has continued to issue rulings as if the court’s decision had never been rendered.

Obama has also ignored the mid-1990s welfare-reform law, allowing states to strip the “work” out of workfare; has refused to enforce federal marijuana laws; has neglected—in the wake of the revelation that his economic “stimulus” was costing taxpayers $278,000 per job—to release timely reports in the manner that’s mandated by the text of the “stimulus” legislation; and has failed to meet more than half of the legal deadlines specified in Obamacare.

So how exactly can “a government of laws and not of men” work if the chief executive refuses to fulfill his constitutional duty to “take Care that the Laws be faithfully executed”?

Two years after the death of James Madison (the last surviving Constitutional Convention delegate), a young Abraham Lincoln preached steadfast regard for the law and warned his fellow countrymen to beware of leaders who might use lawless means to achieve their ends. Lincoln argued that “the history of the world tells us” that “supporting and maintaining [a constitutional] edifice that has been erected by others” will not satisfy certain “men of ambition and talents” as they “seek the gratification of their ruling passion.” When encountering such threats, Lincoln said, the solution is to rely on the people—specifically on their “general intelligence,” “sound morality,” and “reverence for the constitution and laws.”

Republicans should heed Lincoln’s advice: They should defend the rule of law and trust the American people.

© 2013 by The Weekly Standard. Reprinted with permission.