By picking and choosing the laws he wishes to enforce, Obama has abrogated the duties he solemnly pledged to honor upon taking the oath of office as well as those responsibilities outlined in Article II of the Constitution, which governs the powers of the executive.
By Andrew Thomas | January 15, 2014
Over the past year President Barack Obama, a former professor of constitutional law, has given the citizens he now leads an enduring lesson on the nation’s founding document—though one he would likely prefer not to acknowledge. Obama has taught the country how a chief executive may flout the dictates of the Constitution he swore to uphold and get away with it. The public’s response to this ongoing challenge will largely determine whether America remains a nation under the rule of law.
Obama’s actions have gone beyond the simple breaking of campaign promises, though he has done that as well in the same stroke. By picking and choosing the laws he wishes to enforce, he has abrogated the duties he solemnly pledged to honor upon taking the oath of office as well as those responsibilities outlined in Article II of the Constitution, which governs the powers of the executive. The Constitution requires that the president, upon taking office, swear he will “faithfully execute the Office of President of the United States” and “to the best of my ability, preserve, protect and defend the Constitution of the United States.” Article II, Section 3 of the Constitution specifically obliges the president to “take care that the laws be faithfully executed.”
Obama’s fidelity to both obligations, and particularly the “take care” provision of the Constitution, has evaporated. Instead, he has embarked on an active and unprecedented assertion of executive fiat. For this he is unapologetic and apparently unconcerned about effective counterattack.
In rallies, public statements and official actions, Obama repeatedly has vowed not to wait for Congress to execute his vision for the nation or to permit that body to obstruct him. “I will not allow gridlock, or inaction, or willful indifference to get in our way,” he has assured his supporters.
He has been as true to this pledge as he has been unfaithful to his constitutional commitments. On an array of issues, Obama has sidestepped the laws of the nation, including his own eponymous ObamaCare legislation, to implement his will and avoid political retribution from the increasingly outraged voters he misled along the way. This tactic has been most plain in his selective implementation of ObamaCare, or the Affordable Care Act, though scarcely confined to this area of public policy.
His discriminatory approach to enforcing the nation’s laws has provoked such level-headed men as George F. Will and Charles Krauthammer to condemn Obama, respectively, for his “aggressive assertion of enforcement discretion” and “authoritative lawlessness.” Krauthammer has been particularly unsparing. Linking together the Senate’s abolition of the filibuster to push through Obama executive and judicial nominees and the arbitrary enforcement of ObamaCare and immigration laws, he has described the reign of Obama Democrats in the nation’s capital as “banana republic stuff.”
Obama’s arbitrary and capricious enforcement of his namesake healthcare legislation has been the venue where these tendencies have been in starkest relief. His actions over the past year have exposed plainly the nature and dimensions of his rule by fiat.
In February, the Labor Department announced a one-year delay on the amount for how much people must spend on their own insurance. There was no amendment of federal law to allow this suspension of ObamaCare. The administration decreed it anyhow.
On the eve of the July 4 holiday—the timing obviously chosen to bury the news—the administration proclaimed, via a post on an agency blog, another one-year delay in the implementation of ObamaCare. This time it was the so-called employer mandate, or the requirement that employers with at least 50 people provide sufficient health-care insurance or pay a fine. There was, again, no legal authority for this act, which directly conflicted with federal statute.
In August, the Office of Personnel Management interpreted the law to exempt members of Congress and their staff from having to obtain insurance through the new healthcare exchanges. This violated the Affordable Care Act, which required them to purchase coverage through the exchanges. The administration’s ukase allowed its allies on Capitol Hill to retain more lucrative federal benefits, while other Americans were denied this privilege.
As the ObamaCare rollout progressed, and duly became the greatest public-relations and political nightmare of his administration, Obama ceased relying on subordinates to suspend unpopular components of the new healthcare law and simply announced them himself. The highpoint came in November. As insurance companies began canceling policies that did not comply with ObamaCare’s minimum coverage requirements, and Americans felt firsthand the real consequences of the new law, Obama’s previous assurance, “If you like your plan, you can keep it,” became the most famous unmasked presidential falsehood since the Monica Lewinsky denial and subsequent admission of Bill Clinton.
To deal with this fallout, Obama assured Americans at a press conference they could continue to buy the health insurance plans they wanted into 2014. This political pivot violated the express language of the Act, which provides no insurer may issue a policy after 2013 that does not meet the law’s minimum coverage requirements. Rubbing it in further, Obama refused to consider legislation being considered in Congress that would have amended the law and actually made his actions legal.
By suspending both the employer and individual mandates for the law, Obama managed simultaneously to unravel his most important political accomplishment and do so unlawfully. What mattered most for the long-term constitutional health of the country was the caprice evidenced and the precedents set. His machinations to deal with the political fallout over ObamaCare were only the most visible and blatant examples of a style of leadership which the nation’s Founders, and the ancients whose lessons guided them, would have recognized as a form of tyranny.
Obama has adopted the same approach in other areas of public policy. He violated the constitutional limits on his appointment powers by placing four officials in vacant federal posts for which Senate confirmation was required. He simply declared the Senate to be in recess at the time when it was not. Eventually, a federal court held his three appointments to the National Labor Relations Board unconstitutional. Yet the courts have been, in large measure, a haven for liberal initiatives and actions in recent years. Moreover, many of Obama’s other actions have not triggered litigation, which is expensive and uncertain at best.
Other instances of executive fiat allowed Obama to achieve the success in immigration policy which Congress, and the public they represent, had previously denied him. The president directed the Department of Homeland Security to issue work and residence permits to young illegal immigrants brought to the United States as children. Issuing de facto green cards by refusing to enforce a large swath of the nation’s immigration laws is another abrogation of the “take care” provision of Article II of the Constitution. Nevertheless, these actions still stand, without effective redress.
How has Obama been able to suspend statutes and rule by fiat in the manner of monarchs, something the Framers of the Constitution expressly sought to prevent? His success owes to a combination of contemporary politics and institutional rot.
Obama knows Republicans and their conservative allies will not go to court to force him to implement provisions of ObamaCare they dislike. Obama’s allies dare not do so, either. As a result, there is at this point no organized and effective opposition to these abuses.
Even if such resistance took shape, the institutions they would call upon to halt Obama’s actions are unfriendly. For decades, the political left has conducted an unabashed and well-organized effort to capture entire institutions of American life that wield great power. Like the kingdoms in the Lord of the Rings that fell one after another to Sauron, academia, the arts, the courts, the news media, and other institutional bulwarks have come steadily under liberal sway. As further fruit of their labors, the liberal activists spearheading these efforts have gained influence along the way over the many leaders and citizens who value approval and acceptance by these elite groups. Conservative opposition to this long march has been weak, sporadic and ineffective. In short, Obama can count on many powerful allies and a diminishing band of beleaguered foes.
As Obama’s audacity shows, conservatives find themselves fighting at a late hour to prevent the further growth of a form of tyranny that the president’s actions have driven home with great clarity. The success of this opposition will decide, in no small measure, whether the nation where this battle is unfolding will lose one of the last remaining vestiges of the Founders’ vision for America: the rule of law.
Andrew Thomas is a graduate of the University of Missouri and Harvard Law School. Twice elected as Maricopa County Attorney, the district attorney for greater Phoenix, Arizona, Thomas served a county of four million residents and ran one of the largest prosecutor’s offices in the nation. He established a national reputation for fighting violent crime, identity theft, drug abuse and illegal immigration. He is the author of four books, including Clarence Thomas: A Biography and The People v. Harvard Law: How America’s Oldest Law School Turned Its Back on Free Speech. Mr. Thomas is also a contributor to SFPPR News & Analysis.