This column by ACRU General Counsel Peter Ferrara was published on February 21, 2014 on Forbes.com.
President Obama famously has a pen and a phone. And if he had the same powers that Hugo Chavez had, that would be all he would need to impose Hugo Chavez’s programs on America, unilaterally by decree. President Obama is telling us by his words, and his actions, that he thinks he has at least some of those powers. He is telling us by his words and his actions that he will not obey the law, and follow the Constitution he is sworn to uphold by his Presidential Oath of Office. That is the Constitutional Crisis presently facing America.
Let me give you some concrete examples.
President Obama has made close to 20 changes by now in his own Obamacare law passed exclusively by his own Democrats in Congress. He has done that by decree, without any authorization in the law, and in violation of the Constitution. The Constitution requires him to take care that the laws be faithfully executed, which means the laws as passed by Congress, and as he himself has signed into law.
The law as passed mandates both employers and workers to buy health insurance (workers when their employers don’t). The law as enacted says those mandates both become effective as of January 1, 2014.
But last year, President Obama decreed that the employer mandate, but not the worker mandate, would be delayed by one year. Then last week, he rewrote the employer mandate again. The employer mandate as enacted into law requires all businesses with 50 or more full time employees, defined as those working 30 hours a week or more, to buy the statutorily defined health insurance coverage for those workers.
But President Obama by press release last week created a new category of businesses not mentioned in the law, those employing less than 100 workers. For those employers, Obama’s press release specified that the employer mandate is now pushed back another year, until 2016. Moreover, for all businesses with 100 or more employees, the employer mandate for 2015 will now require them to buy the statutorily specified health insurance for 70% of their workers, rather than for 100% as the law that was actually passed requires.
The Constitution provides that Congress has the legislative power to write the laws. The President has the power to either veto them or sign them. But once he signs them, those laws become the “law of the land,” as Obama himself has also famously said regarding Obamacare. Those laws then apply to the President just as much as to everyone else. In America, unlike in Third World banana republics, the President is not above the law.
The Constitution further provides that once a law is duly enacted, by both Houses of Congress passing it and the President signing it, the President’s duty is to take care that the law is “faithfully executed.” That is why the Constitution calls the President’s Administration the “Executive Branch.”
For the President to rewrite the law as passed by Congress, rather than faithfully executing it, is consequently a violation of the Constitution, and the law. The American Constitution is carefully designed based on the Separation of Powers. The Congress is granted the “Legislative Power” to write the laws, and the President is granted the “Executive Power” to carry them out as Congress provides. That was done to create a system of “checks and balances” so that each branch can check and balance the power of the others. That was done to prevent the tyranny of governmental powers concentrated in one branch of government. That is one reason why the American government has never lapsed into autocratic tyranny, unlike Third World banana republics sometimes do.
For the President to usurp the legislative power of Congress by rewriting the law, rather than following it and executing it as passed, is a fundamental violation of the Constitution’s Separation of Powers, and “checks and balances.” Such Presidential action not only violates the law, like a thief holding you up at gunpoint and taking your wallet, it involves a tendency towards tyranny. It nullifies the basic concept of the rule of law that is supposed to be governing America. It is fundamentally transforming America into a Third World banana republic.
President Obama’s actions in regard to Obamacare do not involve the use of an “Executive Order,” which is within the President’s powers. For an Executive Order to be legal, it must involve an exercise of a Presidential power granted by some other provision of law, either a federal statute or the Constitution. Executive Orders are used by a President to exercise his discretion granted by these other provisions of law.
For example, early in his Administration, President Reagan issued a famous Executive Order regarding federalism. That order involved him instructing the millions of federal employees who worked for him to follow the original Constitutional doctrine of federalism in developing and carrying out their policies under the law within their respective federal agencies. That meant that federal employees carrying out their duties under the law should respect and uphold the authority of the states under the Constitution, and where possible under the law delegate authority to the states to design and implement policies best suited to their respective jurisdictions. Under that Executive Order, President Reagan was telling federal workers who work for him how he wanted them to do their jobs, an authority all Presidents have under the Constitution.
But such an Executive Order authority cannot be used to rewrite a duly enacted federal statute that states plainly that a legal requirement becomes effective on January 1, 2014, to provide that the legal requirement shall become effective instead in 2015, or 2016. Nor can the authority be used to change the legal requirement to 70% from 100%, or to companies of 100 workers or more rather than 50 workers or more. That would be just like a future Republican President trying to use an Executive Order to cut the capital gains tax rate back down to 15%, without Congressional action to provide for that.
Moreover, President Obama’s numerous Obamacare rewrites do not involve the use of regulatory discretion to interpret and implement the law. All federal regulations as well must be based on authority granted by some other provision of law, either a federal statute or the Constitution. For example, the EPA’s regulations regarding emissions of carbon dioxide and other supposed “greenhouse” gases are based on the legal authority of the Clean Air Act. The Supreme Court, in fact, has already ruled that the EPA has the authority under that Act to issue regulations to counter what it may see as the threat of global warming to the public.
That pains me to concede because I think the regulations the EPA is developing and implementing in that regard are bad policy choices, based, in my considered opinion, on dishonest and manipulative supposed “science.” But such regulations, and any Presidential orders to the EPA to proceed with them, do not violate the law and the Constitution.
But no legal regulation can “interpret” January 1, 2014 to mean 2015 or 2016. Nor can it interpret 100% to mean 70%, or less than 50 workers to mean less than 100 workers. Any President authorizing or ordering that would be breaking the law and violating the Constitution.
The reason for Obama’s rewriting of his own law regarding the employer mandate is that he knows that when it goes into effect, millions of Americans will lose their health insurance, exactly contrary to one of the key promises he made to America to get Obamacare passed. That is because the insurance that so many workers have does not fit all the Obamacare requirements regarding what insurance they must have to satisfy the employer mandate. So employers will have to cancel the insurance for millions of workers, and many will not replace that insurance with the costly insurance Obamacare requires. What this means is that his promise that “if you like your health insurance, you can keep it,” has turned out to be that if Obama likes your insurance, as specified under the Obamacare law, you can keep it. Many Americans will feel they were lied to in this regard when they find this out, by personal experience. Certainly that is how people felt when millions lost their health insurance when the individual mandate went into effect over the last several months, due to this exact same effect.
Moreover, millions of Americans will probably not only lose their health insurance, but their jobs as well, or at least their full time jobs, as they are reduced to part time to evade the costly employer mandate requirements. So the whole reason for Obama breaking the law in this way, and violating the Constitution, is the unseemly motivation to hide from the American people the effects of his law, at least until after the next elections.
Obama apologists like Juan Williams of Fox News try to tell us this is nothing new. The same thing happened at the beginning with Social Security and Medicare, they claim. But that is a completely false, Orwellian rewrite of history. There were no violations of law and the Constitution to get those programs enacted and implemented. Nor were the politics of the enactment of Social Security and Medicare at all similar to the enactment of Obamacare, contrary to Obama’s Orwellian newspeak.
Obama’s violations of the law explained above would be corrected in the courts. But President Obama very slyly knows what he is doing when it comes to abuse of authority (as opposed to promoting economic growth, jobs and prosperity, if he is really for those things). A consistent theme of his violations of law is that they are usually carefully crafted to avoid conferring “standing” on anyone to go into court and challenge him.
To confer standing on any such challenges, the violation of law must impose a concrete burden on a party that can sue. That would arise when the violation imposes a new regulatory or financial burden on the party. But delaying or even waiving a statutory requirement does not involve imposing such a burden, and so does not confer standing to sue.
For example, President Obama abused his authority, and violated the law and Constitution, when he tried to appoint “recess” appointees to the National Labor Relations Board when the Senate was not in recess, and even officially said so. Those appointees went on to issue rulings that did impose financial penalties and regulatory burdens on parties, which did confer standing on them to sue. And federal courts have ruled that such supposed “recess” appointments did violate the Constitution, and so their appointments, and all actions they have taken, are inoperative, invalidating the financial and regulatory burdens.
But President Obama and his NLRB are avoiding complying with those federal court decisions. This is a variant on President Obama’s violation of law strategy we can call “Sue Me.” He pursues that when he thinks the matter is important enough to take action even when the action can reasonably be expected to be struck down in the courts, such as implementing a union takeover of the NLRB, where as much mischief and mayhem as possible can be implemented before the courts shut it down. With a little luck, such abuse of authority can continue for years, maybe even the rest of Obama’s term, with all of the resulting mischief and mayhem never caught up with and completely reversed.
As this NLRB case shows, the Obamacare rewrites are not Obama’s only violations of law and the Constitution. In 2012, 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, even though the 1996 law expressly anticipated and banned any such change in the requirements.
In 2013, Attorney General Eric Holder, acting under President Obama’s authority and with his consent, 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. President Obama has also ordered suspensions of deportation of certain categories of illegal aliens. His Administration has also refused to follow some court rulings, as in the NLRB case, 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.
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.
Whole books have been written explaining and documenting such illegal, unconstitutional actions by President Obama. Those are books calling for his impeachment as a result. You and many others may support substantively some of the policy changes above that President Obama has implemented illegally by unconstitutional decree. But the point is those changes have to be adopted through legal, Constitutional procedures, if we are to be a nation governed by the rule of law, and the democratic process.
All this Presidential lawlessness is further bad news for the economy. It creates a nascent “political risk” for investment in America, for the first time since the Civil War. Once the President crosses the boundary of the law, there is no certainty as to how far he would go. That reduces the security of property, investment and all business in America. That is further exacerbated by the rhetoric of the President and his political allies against all those with money to invest and build businesses and enterprise. At the margin, all of this discourages investment, job creation, entrepreneurship, and business creation and expansion in America, which means less growth in the economy, wages and incomes.
The Constitution provides the check and balance of impeachment when the President becomes a reckless lawbreaker, vowing to rule by decree with his pen and his phone rather than in accordance with the law and the Constitution. That is how the Constitution ensures that America does not slide into a third world banana republic, like Argentina or Venezuela, at one time both rising, increasingly prosperous countries.
But the Democratic Party in Washington at least is in full support of their President’s lawbreaking. Impeachment requires a two-thirds vote in the Senate to remove a President from office. With a Senate Democrat majority still in lock step with the President Obama’s march to the far left, there is no prospect of that. For the House GOP majority to vote for impeachment, forcing a vote in the Senate with no prayer of success, would just invite political backlash.
Consequently, it falls to the voters themselves to rescue the rule of law and the Constitution from the President’s lawlessness. The Democrats as a party today defend, support and stand for what Obama is doing. Ruling by decree, rewriting the law rather than faithfully executing it as enacted in accordance with the democratic process. Usurping the legislative authority of the Congress, and the Constitution’s Separation of Powers. Veering towards Third World banana republic autocracy, rather than standing for the rule of law.
Voters have the opportunity in this fall’s Congressional elections to hold Democrats accountable for this slide from the standards of governance of Western Civilization. If Republicans are swept into the majority in the Senate, after 8 years of Democrat Senate majorities, and Obama handmaiden Harry Reid is replaced as Senate Majority Leader, where he himself has ruled as a petty tyrant, that alone would chasten Obama that he cannot get away with any Hugo Chavez/Juan Peron style autocracy in America. The voters themselves would then have resolved the Constitutional crisis, as the last line of defense for American democracy.