This column by ACRU General Counsel and Senior Fellow for the Carleson Center for Welfare Reform (CCWR) Peter Ferrara was published August 21, 2013 on The American Spectator website.
In the third of the six films of the Star Wars saga, the Sith Lord who has infiltrated to become the ruling Chancellor of the democratic republic confederation of peaceful worlds announces to the elected Assembly of representatives of those worlds that to deal with an exaggerated, fabricated crisis, “The Old Republic will be reorganized into the first Intergalactic Empire.” The distracted Assembly responds with polite applause. One of the few characters who understands what is happening remarks wryly, “So this is how the Republic ends. With applause.”
Proving that truth is stranger than fiction, this is happening right now in the United States of America. President Obama has already seized the power to rule by decree, and is doing so virtually every day now.
For those who do not immediately get what is meant by “rule by decree,” let me explain. The Constitution grants the power to legislate, to make laws, to the Congress, which is why it is called “the Legislative Branch.” It grants the power to carry out, or execute, the laws to the President, which is why the President and his Administration are called “the Executive Branch.” The Constitution accordingly specifies that the President’s duty is “to take care that the laws be faithfully executed.” It grants the power to interpret and adjudicate the law to the Judiciary, which is why that is called “the Judicial Branch.”
But President Obama does not accept the limitations of his role within this constitutional framework. He is now regularly exercising the power to legislate directly himself, either by announcing on his own supposed authority changes in existing laws that Congress has already passed, or by announcing that he will carry out entirely new laws that Congress never passed, or even refused to pass. These actions are brazen, lawless violations of the Constitution.
The President through his Executive Branch has the power to issue regulations interpreting the law as passed, for purposes of implementation. But all regulations must be authorized by an underlying law passed by Congress. Neither the President nor any agency underneath him in the entire Executive Branch can issue a regulation that contradicts or changes the law that is cited as authorizing it. In other words, if the law says 2014, the President has no authority to say screw it, I say 2015, by regulation or otherwise.
The same is true of Executive Orders. All Executive Orders must be based on authority granted to the President by some law passed by Congress, or by the Constitution itself.
The President does have the authority to refuse to enforce laws he believes are unconstitutional. But he cannot refuse to enforce laws because he disagrees with them, or to gain political advantage, such as delaying implementation of a law until after the next election, attempting to deceive the American people as to what has been enacted until the next election passes. The Office of Legal Counsel in the U.S. Justice Department exists to advise the President as to his legal powers. And this is what legal opinions issued by that office have said.
Similarly, in Clinton v. City of New York, the Supreme Court ruled, “There is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes…. The only constitutional power the president has to suspend or repeal statutes is to veto a bill or propose new legislation.”
The Lawless President
President Obama has engaged in such lawless usurpation of authority most of all in regard to his pride and joy, Obamacare, which he finagled through Congress in 2010 on a strict party line vote, openly buying off recalcitrant Democrats who foresaw the coming train wreck with various political sweeteners at taxpayer expense. But now that it has passed, he refuses to implement it as passed, even though former House Speaker Nancy Pelosi famously said we would have to pass it to find out what is in it. But not when the public finding out what is in it might lead to political disadvantage for the Democrats, apparently.
The lawlessness started even before President Obama’s re-election. The law provided for $716 billion in cuts to Medicare in the first 10 years alone. But to evade political retribution for these cuts, the President delayed them until after the election, and dishonestly misrepresented them during the campaign. He and his campaign told voters the cuts involved only reductions in “overpayments” to doctors and hospitals providing health care to seniors, and in “subsidies” to insurance companies, which millions of seniors had chosen to provide their Medicare benefits under Medicare Part C, saying actual Medicare “benefits were not affected at all”&emdash;”not by one dime.”
The President did not want seniors to be able to see in their own lives that these gross mischaracterizations were not true. The Medicare Chief Actuary explained that within a few years, the cuts would reduce Medicare payments to doctors and hospitals to only about half what is paid under Medicaid for health care for the poor, which studies have documented results in poor health care for the poor. So the cuts disappeared until after the election, by illegal Presidential decree.
Similarly, the Obamacare law provided that insurance companies could not decline coverage for children with pre-existing conditions, but in an alleged mistake, the law as passed said that did not become effective until January, 2014. But to gain political advantage before the 2012 elections, HHS issued a rule declaring that this popular provision would become effective on September 23, 2010. Intimidated from challenging the illegal rule in court, health insurers began withdrawing the sale of child only policies, resulting in no one selling such policies in almost half the country.
The Obamacare law as passed also provides that the extensive Obamacare subsidies for purchasing health insurance on the exchanges apply in such Exchanges set up by the states, as the law contemplated. But 27 states exercised their right under the law to refuse to set up exchanges, leaving the federal government to do it in those states, primarily because the states were left with no discretion or authority regarding how to organize them. Only 17 states have actually established exchanges on their own. The law as written and passed only provides for the Obamacare exchange health insurance subsidies to apply in these 17 states. So on May 23, 2012, the IRS issued an illegal rule providing that the Obamacare exchange subsidies shall apply in all 50 states any way.
After the President’s re-election, he famously announced a delay for one year of one of the basic pillars of the law, the employer mandate requiring employers of 50 or more full time workers to buy health insurance for their workers, as the government specifies exactly what they must buy. The Obamacare law explicitly says the Obamacare law would become effective in 2014. The President has no legal authority to change that to 2015, as the Supreme Court has ruled. But the President brazenly flouted the law, the Constitution, and the Supreme Court by decreeing the mandate shall be delayed until 2015.
This rewriting of the law as we go is contributing to further Obamacare chaos. The exchange subsidies were only supposed to be available under the Obamacare law to those who do not receive the required employer-provided insurance. But since no such insurance will now be required next year, very few will actually have the elaborate and expensive employer insurance as required. Moreover, the CBO estimates on the cost of Obamacare are based on only a fraction of workers qualifying for the exchange subsidies.
The Obamacare law requires the exchanges to verify whether applicants for the exchange subsidies qualify because they do not have required employer coverage, and to verify applicant incomes with employers to determine how much applicants qualify for in subsidies. But with no employer mandate for next year, the Obama Administration recently issued another illegal rule authorizing exchanges to just take the applicant’s word on whether they have employer-provided health insurance, and how much they are paid.
The Obamacare law as passed provides that Obamacare shall apply to members of Congress and their staffs when it becomes effective next year. But that was causing extensive panic on Capitol Hill as our public servants began realizing what that would mean for them. So the Office of Personnel Management recently issued another illegal rule exempting Congressional members and their staffs from the Obamacare limitations on what the federal government could pay for their health insurance, which will still apply to others in the private sector.
The Obamacare law also provides for caps on out-of-pocket costs consumers themselves must pay under Obamacare policies, limiting such costs to $6,350 for individual policies and $12,700 for family policies. But because the Obama Administration is apparently unprepared to implement these caps, the Labor Department issued an illegal rule in February 2013, rewriting the Obamacare law once again to waive these caps until 2015.
The Obama Administration has similarly flouted the Obamacare law in regard to implementing the Small Business Health Options Program (SHOP), which was supposed to grant small businesses broader health insurance options, the Federal Basic Health Plan Option, which was supposed to offer a more affordable managed care insurance choice, and required electronic notification to consumers of eligibility for Medicaid and Exchange subsidies.
An Illegal Habit
But President Obama’s illegal flouting of the law has not been limited to his own hapless Obamacare law. Last year, the President implemented the so-called DREAM Act by decree, after Congress had considered it, but refused to enact it, providing for new benefits for illegal immigrants brought to America as children. Before that, the President had ruled by decree that governors could apply for waivers from the welfare reform work requirements adopted in 1996 under President Clinton.
President Clinton was sent out during the Democratic National Convention to falsely claim that the ruling only allowed the governors to require more work. But under the 1996 welfare reforms, the governors did not need any more authority to require more work. The law already granted them complete authority to do so.
Earlier this month, Attorney General Eric Holder ordered all U.S. attorneys to stop prosecutions of all nonviolent, non-gang-related, drug crime defendants subject to mandatory minimum sentences. The law requires such mandatory minimum sentences. The Obama Administration is just refusing to follow and enforce the law.
Last week, the President asked the Federal Communications Commission to impose a $5 tax per cell phone to finance the extension of a program to expand Internet access. The American colonists protested in the Boston Tea Party against a 3 cent tax on tea, which they complained was not imposed in accordance with law. The colonists were smart enough to see that if the King could impose a 3 cent tax without legal authorization, there was no legal constraint at all on his abuses. That protest led to the Revolutionary War over the principle.
One of the articles of impeachment against Richard Nixon was that he used the IRS for special audits and investigations of his political opponents. Under Obama, we all know now that the IRS has done the same thing. President Obama has also refused to obey court orders, such as when the federal courts ruled that his so-called recess appointments of federal officials when the Senate was not in recess were unconstitutional, or the federal rulings that the President’s extended moratorium on Gulf oil drilling after the British Petroleum oil leak were illegal under the law.
Charles Krauthammer wrote earlier this month regarding President Obama’s lawlessness that “such gross usurpation disdains the Constitution. It mocks the separation of powers….If the law is not what is plainly written, but is whatever the president and his agents decide, what is left of the law? What’s the point of the whole legislative process—of crafting various provisions through give and take negotiation—if you cannot rely on the fixity of the final product, on the assurance that the provisions bargained for by both sides will be carried out.”
Krauthammer further explained the resulting breakdown of our government, saying, “Consider immigration reform. The essence of any deal would be legalization in return for strict border enforcement. If some such legislative compromise is struck, what confidence can anyone have in it—f the President can unilaterally alter what he signs?”
Krauthammer adds, “Yet, this President is not only untroubled by what he is doing, but open and rather proud. As he tells cheering crowds on his never-ending campaign style tours: I am going to do X—and I’m not going to wait for Congress. That’s caudillo talk. That’s banana republic stuff. In this country, the President is required to win the consent of Congress first. At stake is not some constitutional curlicue. At stake is whether the laws are the law.”
Democrats Against Democracy
If the President can rewrite and make up the law, then the bonds of democracy are broken completely. We are no longer governed by laws adopted through the democratic process, but ruled instead by authoritarian, Third World-style decree.
These brazenly lawless abuses of office by the President more than justify his impeachment. But with the most partisan Democrat control of the Senate in our history, that impeachment would go nowhere in the Senate. Moreover, even to raise the word guarantees a 250% Democrat voter turnout next year, especially given how the public reacted when the Republicans attempted to impeach President Clinton for his much more mild violations of law.
But there is another check and balance on President Obama’s abuse of office. Hold the Democrat party politically accountable for the third world-style authoritarianism and suspension of democracy of the Obama Administration. They are the ones covering for the authoritarian caudillo, in Krauthammer’s words. They are the ones who selected Obama as their party standard bearer despite his radical left-wing extremist roots and background.
Those today who contribute to, support, and vote for the Democrat party are supporting this lawless suspension of our democracy. Is democracy even socially respectable in America today?