Making up Obamacare (and other laws) as we go along

March 10, 2014 | By TIMOTHY SANDEFUR

Jonathan Turley has an excellent editorial in the L.A. Times about the Obama Administration’s repeated re-writes of Obamacare by executive fiat. As Turley observes, this is part of the Administration’s pattern of Legislation By Press Release—and even if you are a Democrat or otherwise support Pres. Obama’s policy goals, you should be concerned about the precedent that these rewrites of the law are setting, which might be exploited by the next person to occupy the Oval Office. “In our system, it is often more important how we do something than what we do. Priorities and policies and presidents change. Democrats will rue the day of their acquiescence to this shift of power when a future president negates an environmental law, or an anti-discrimination law, or tax laws.”

But there’s an important additional point Turley doesn’t make. As we’ve noted on this blog, you must keep in mind that the President is not actually changing the law when he issues these dictates; he’s simply saying his deputies will decline to enforce the law for a certain period of time. And the problem with that is, it allows those in charge to demand certain concessions in exchange for these executive orders. “If you give me X,” the President can say, “I will order my deputies not to enforce the law against you.” If the President can grant waivers, he can demand things in exchange for those waivers—as, in fact, President Obama did when granting “waivers” of the No Child Left Behind Act.

The Constitution provides that the President “shall take care that the laws be faithfully executed.” This language was written by men who knew of the terrible history of English kings, who had sometimes exploited their powers to look the other way in exchange for favors. Less than a century before, Englishmen had evicted James II from the throne and replaced him with William and Mary—and at the same time insisted on the English Bill of Rights, which indicted the former king for “assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament,” and “prosecuting” people who had asked “to be excused from concurring” with such waivers. In particular, James used the royal power to “suspend the laws” to ignore laws Parliament had passed banning Catholics from certain government offices. Whatever one might think of those laws today, James exploited his authority to fill these offices with his own personal lackeys—one of the abuses that led to his eventual overthrow.

The founders, well aware of that history, required that the President not merely enforce, but faithfully enforce the laws. So long as he has no constitutional objection, the President is required to enforce even laws that he disagrees with or dislikes—because however bad those laws may be, a presidential power to pick and choose which he wants to enforce is far more dangerous. Of course, it’s different if the President holds a law to be unconstitutional, because unconstitutional laws are not laws in the first place, and the President has no obligation to enforce those. But obviously President Obama doesn’t think Obamacare is unconstitutional—just inconvenient. And as long as he can choose which parts to enforce or not enforce, he is in a position to demand loyalty or baksheesh from those who need exemptions.

Again, this should unnerve even those who would otherwise support the President. I myself dislike some of the laws that the President has chosen to disregard. But as the Constitution’s authors knew, “enlightened statesmen will not always be at the helm.” Any power today’s President claims can be used again by the next President. And any threat to the rule of law today can metastasize into a far more dangerous problem next time around.