July 9 2013

Can Presidents Suspend the Law When it Suits Them?

Charlotte Hays

Lucianne.com leads this morning with a cartoon that says a lot about the implementation of ObamaCare: President Obama is holding a bottle of Dr. Obama’s Snake Oil. On the bottle are the words, “Don’t open until I skip town.”

It is a reference of course to President Obama’s unilateral decision to delay key provisions of ObamaCare. It is the job-killing employer mandate that is being suspended, and conservatives, business owners, and people who are hunting for a job might be relieved at the temporary respite. Except for the violence it does to our Constitution.

Michael McConnell, a former judge on the U.S. Court of Appeals for the Tenth Circuit, law professor and director of the Hoover Institution’s Constitutional Law Center at Stanford, writes this morning in the Wall Street Journal:  

President Obama's decision last week to suspend the employer mandate of the Affordable Care Act may be welcome relief to businesses affected by this provision, but it raises grave concerns about his understanding of the role of the executive in our system of government.

Article II, Section 3, of the Constitution states that the president "shall take Care that the Laws be faithfully executed." This is a duty, not a discretionary power. …

This matter—the limits of executive power—has deep historical roots….

English monarchs, as the Journal recalls, once regarded it as their right to simply dispense with laws passed by Parliament that they didn’t like. The Glorious Revolution of 1688 was triggered in part by the hapless James II’s attempt to abrogate laws passed by Parliament. The English Bill of Rights of 1689, a precursor to our Constitution, said "the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal."

The authors of the Constitution embedded this in our law, ensuring (until now) that no president would claim the right to abrogate laws. Only one modern president (until now) has made a serious attempt at resurrecting the old royal prerogative: Richard Nixon made an attempt to simply not spend money Congress had designated for a particular purpose. The courts shot him down. In a 1998 case, the Supreme Court held that the only right a president has to suspend or repeal law is through the veto.

McConnell points out:

The employer mandate in the Affordable Care Act contains no provision allowing the president to suspend, delay or repeal it. Section 1513(d) states in no uncertain terms that "The amendments made by this section shall apply to months beginning after December 31, 2013." Imagine the outcry if Mitt Romney had been elected president and simply refused to enforce the whole of ObamaCare.

This is not the first time Mr. Obama has suspended the operation of statutes by executive decree, but it is the most barefaced….

The suspension puts conservatives in a bind: they know that the law is a disaster and that the employer mandate will further stall our economy. So the suspension may cause many employers to breath a sigh of relief. But this sets a precedent. What happens the next time a U.S. president suspends a law?

On a practical level, it might be better if ObamaCare goes into effect on schedule and we see that it is unworkable.  But above and beyond what ObamaCare does or doesn’t do, we do not want our president to act like a pre-Glorious Revolution monarch. The problem is that this president likely won’t budge without a media outcry. How likely is that? This act amounts to an inglorious revolution in constitutional government.

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