How Republicans Should Respond to the President’s Lawlessness

Rule of Law by from National Review, February 11, 2014

The Obama administration’s latest unilateral alterations to Obamacare, which Yuval Levin does a nice job of succinctly summarizing here, further highlight the need for conservatives to rally around an alternative to Obamacare that can pave the way to full repeal. However, it is becoming increasingly apparent that the battle over Obamacare isn’t just about the future of our health-care system—or even about the size and scope of government. It’s fast becoming a battle over the future of the rule of law in a constitutional republic.

While some in Washington struggle to see it, the startling nature of the Obama administration’s willingness to defy or change written law—law that Obama himself spearheaded and signed—is surely made plain to the average citizen simply by reading the accounts of those actions in the lead story of this morning’s Wall Street Journal.

The Journal writes (all emphases added), “The Treasury Department, in regulations outlining the Affordable Care Act, said employers with 50 to 99 full-time workers won’t have to comply with the law’s requirement to provide insurance or pay a fee until 2016.” As the account rightly notes, the law requires compliance. And the law hasn’t been changed. The Journal continues, “The move came after employers pressured the Obama administration to peel back the law’s insurance requirements.” But since when does the executive branch have the legal or constitutional authority to “peel back” the requirements of a duly passed law, whether or not that branch is feeling “pressured” by business lobbyists? (The account adds, “A senior administration official said the shift was a response to businesses’ concerns, and it quotes one lobbyist as being “pretty pleasantly astounded” by the developments.)

The Journal goes on, writing, “Under the original 2010 health law, employers with the equivalent of at least 50 full-time workers had to offer coverage or pay a penalty starting at $2,000 a worker beginning in 2014.” That “original” law remains the only version of Obamacare on the books. The law hasn’t been changed. Subsequent “law,” to the degree that it varies from the original, isn’t law at all.

The Journal then adds this passage: “Monday’s announcement of fresh changes comes as the administration weighs how much of the law to adjust in the wake of its troubled rollout. Health care is expected to be a central issue in the November midterm elections.” But how can an administration “adjust” a law?

The plainness of the usurpation of power on the part of this administration is obvious, and one wonders how many Democrats—some of whom surely have respect for the rule of law—will continue to abide it. Would any Democrat want a Republican president to view the law—or the scope of executive power to “adjust,” “peel back,” or ignore the law—in this way?

The account, however, also highlights problems on the other side of the aisle. It says, “GOP lawmakers, who oppose the law, seized on the delay to argue the administration should relax other key provisions, including the requirement that individuals carry coverage or pay a penalty, which has been in effect since the beginning of this year.” The New York Times provides an almost identical account: “Republicans denounced the unilateral move as a violation of the law and called on the White House to throw out all of the Affordable Care Act’s coverage mandates.”

This is exactly the wrong response. Republican lawmakers should be insisting that the Obama administration execute the law as written—and should start holding high-profile hearings in the House to have administration officials explain why they don’t think they need to execute the law as written, while having constitutional experts explain why they do. Secondarily, Republicans should insist that the Democratic Senate pass, and Obama sign, actual changes to the law itself—which have already been passed by the House with a fair amount of Democratic support—to delay the individual mandate alongside the employer mandate that the business lobbyists are so “pleasantly astounded” they were able to get delayed in clear violation of the written law itself.

© 2014 National Review, Inc. Reprinted with permission.