As many Americans contemplate the depressing fact that we are only six months into President Obama’s second term, with its remaining 42 months stretching to the horizon like a dry and dusty desert with no oasis in view (short of the 2014 congressional vote, which offers some opportunity for refreshment), there’s a new worry that no previous generation has had to confront:
What is there the president might want to do to advance his political agenda that any law can prevent him from doing?
That is, where are the boundaries around presidential power when the chief executive controls or sways all the agencies — Congress, the Department of Justice, even to some extent the courts — that might hold him accountable?
Before Obama’s ascendancy, the question asked of many presidents was a bit different: “What are the limits to presidential power in specific cases?”
The difference may be subtle, but it’s real: Once critics of presidential assertions of authority would question the chief executive’s actions and decisions in the context of a given law — Lincoln’s suspension of habeas corpus during the Civil War, or FDR’s court-packing scheme when the Supreme Court at first blocked his New Deal programs, or several presidents’ manhandling of the War Powers Act’s provisions about conducting military operations abroad.
But now, assertions of presidential authority over and against the actual provisions of law and precedent (including laws the president supported) are so many and varied that it’s not clear exactly what Obama wouldn’t do if he felt it were necessary.
This is not to call him a dictator (exactly) — he’s not going to cancel the next elections, or order political opponents imprisoned, for example (but there is an Arab Christian filmmaker still in jail because he made a video falsely blamed for the Benghazi murders of our diplomats).
Still, it is worth noting that his view of following his constitutional duty of making sure the laws of the nation “be faithfully executed” is, well, sui generis.
In the first four and half years of this administration, we’ve seen Obama or his minions violate federal law by, among other things, sending thousands of guns to Mexican drug lords; refusing to defend the Defense of Marriage Act in court; telling Christian businesses and church-related institutions they had to provide benefits that vacated their First Amendment rights; not enforcing laws against illegal immigration; sic the IRS on political opponents in order to prevent them from influencing the 2012 election; and, in the Pigford scandal, pay off people who never farmed with millions of dollars intended to compensate minority farmers for past discrimination.
And that’s only a partial list. But with his decision to postpone the implementation of the employer mandate to provide workers with insurance or pay a penalty, he’s extended his aggrandizing powers to negate a major portion of the most influential social legislation in a generation.
(The individual mandate, penalizing those without employer-provided insurance if they fail to buy their own coverage, remains in place, although Republicans in Congress are trying to get it postponed, too.)
By delaying a crucial part of his signature achievement, the Affordable Care Act (aka Obamacare), until 2015 because its impact would likely create huge costs that could lose Democrats support in 2014’s elections, Obama has created a precedent that could reverberate far down the road.
As one critic noted, “What happens if a Republican president decides that taxes on dividends are a drag on the economy and orders the IRS not to collect them?” One can think of a thousand more examples from all sides of the political spectrum that could also be cited, because many laws can be said to harm some members of society.
For example, suppose the Endangered Species Act blocked a development a presidential donor wanted? What if an environmental standard was going to close down a big industry, with thousands of jobs in the balance (i.e., coal mining)? Why should a mere law take precedence over the desires of the man (or woman) in the Oval Office, who, after all, is the only national figure elected by all the people?
See how the logic works? See where it will end up?
As political analyst Michael Barone said in a July 14 column titled, “The Perils of Dispensing with the Law,” Obama “seems to be ignoring (his) duty.”
It’s not just the employer mandate that got put off. The ACA’s requirement that health care exchanges (where those without employer coverage can buy insurance) verify either the eligibility for coverage or the qualifying income of people applying for subsidies was also waived, a move called an “invitation to a defrauding” by Scott Howard, a Claremont Institute fellow, on his Powerline blog.
First of all, the law itself says such subsidies can only be provided by states with federally run exchanges, but the administration unilaterally decided to offer them to state-run exchanges, too. Right now, about half the states have decided to run their own exchanges.
Yuval Levin, writing on National Review Online, noted, “The delay of the individual mandate announced on Tuesday and the delay of the verification requirements for eligibility announced on Friday both suggest the same two kinds of problems: logistical difficulties with getting complex systems into place, and the fear of ending up with too few people in the exchanges.”
That, he says, constitutes “Opening the door wide to fraud,” which “could well increase the number of people in the exchanges, but it will also make that number far less meaningful — casting a shadow over whatever is achieved by the enrollment effort set to launch in the fall. It will also, needless to say, increase the cost of the exchange subsidies. The administration is clearly worried enough about enrollment to take that risk and bear that cost. It seems to be operating under the assumption that the way to secure Obamacare’s future is to get as many people as possible into the system and receiving subsidies. Maybe they’re right, and maybe they’re wrong, but they certainly seem increasingly desperate.”
Barone compared Obama to England’s King James II, who was ousted because, among other things, he held that he could ignore an act of Parliament because, after all, he was the king.
Barone concluded by saying, “Enforcing only the parts of laws that you like or you find politically convenient can start verging on tyranny … (And Obama’s) unwillingness to faithfully execute his own signature law is a confession of incompetence — the incompetence of the architects of Obamacare, the incompetence of Obama’s administrators, even the incompetence of government generally.”
As a result, our Oval Office king is facing blowback in the form of a reluctance to put any new power in the administration’s hands — to take a current example, a greatly revised immigration policy — because some provisions of a carefully crafted compromise could simply be ignored by an administration with a long, well-established record of disdain for legal niceties.
King Louis XIV of France may or may not have said, “L’etat, c’est moi” (“I am the state”), but Barack Obama seems to think he can often govern that way. The question is, will he get away with it?
So far, he certainly has.
M.D. Harmon, a retired journalist and military officer, is a free-lance writer and speaker. He can be contacted at:firstname.lastname@example.org