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Old 07-09-2013, 11:10 AM   #1
VaderDave
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An interesting article on federal executive power and enforcement of the law

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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. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.

This matter—the limits of executive power—has deep historical roots. During the period of royal absolutism, English monarchs asserted a right to dispense with parliamentary statutes they disliked. King James II's use of the prerogative was a key grievance that lead to the Glorious Revolution of 1688. The very first provision of the English Bill of Rights of 1689—the most important precursor to the U.S. Constitution—declared that "the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal."

To make sure that American presidents could not resurrect a similar prerogative, the Framers of the Constitution made the faithful enforcement of the law a constitutional duty.

The Justice Department's Office of Legal Counsel, which advises the president on legal and constitutional issues, has repeatedly opined that the president may decline to enforce laws he believes are unconstitutional. But these opinions have always insisted that the president has no authority, as one such memo put it in 1990, to "refuse to enforce a statute he opposes for policy reasons."

Attorneys general under Presidents Carter, Reagan, both Bushes and Clinton all agreed on this point. With the exception of Richard Nixon, whose refusals to spend money appropriated by Congress were struck down by the courts, no prior president has claimed the power to negate a law that is concededly constitutional.


In 1998, the Supreme Court struck down a congressional grant of line-item veto authority to the president to cancel spending items in appropriations. The reason? The only constitutional power the president has to suspend or repeal statutes is to veto a bill or propose new legislation. Writing for the court in Clinton v. City of New York, Justice John Paul Stevens noted: "There is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes."

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. In June of last year, for example, the administration stopped initiating deportation proceedings against some 800,000 illegal immigrants who came to the U.S. before age 16, lived here at least five years, and met a variety of other criteria. This was after Congress refused to enact the Dream Act, which would have allowed these individuals to stay in accordance with these conditions. Earlier in 2012, the president effectively replaced congressional requirements governing state compliance under the No Child Left Behind Act with new ones crafted by his administration.

The president defended his suspension of the immigration laws as an exercise of prosecutorial discretion. He defended his amending of No Child Left Behind as an exercise of authority in the statute to waive certain requirements. The administration has yet to offer a legal justification for last week's suspension of the employer mandate.

Republican opponents of ObamaCare might say that the suspension of the employer mandate is such good policy that there's no need to worry about constitutionality. But if the president can dispense with laws, and parts of laws, when he disagrees with them, the implications for constitutional government are dire.

Democrats too may acquiesce in Mr. Obama's action, as they have his other aggressive assertions of executive power. Yet what will they say when a Republican president decides that the tax rate on capital gains is a drag on economic growth and instructs the IRS not to enforce it?

And what of immigration reform? Why bother debating the details of a compromise if future presidents will feel free to disregard those parts of the statute that they don't like?

The courts cannot be counted on to intervene in cases like this. As the Supreme Court recently held in Hollingsworth v. Perry, the same-sex marriage case involving California's Proposition 8, private citizens do not have standing in court to challenge the executive's refusal to enforce laws, unless they have a personal stake in the matter. If a president declines to enforce tax laws, immigration laws, or restrictions on spending—to name a few plausible examples—it is very likely that no one will have standing to sue.

Of all the stretches of executive power Americans have seen in the past few years, the president's unilateral suspension of statutes may have the most disturbing long-term effects. As the Supreme Court said long ago (Kendall v. United States, 1838), allowing the president to refuse to enforce statutes passed by Congress "would be clothing the president with a power to control the legislation of congress, and paralyze the administration of justice."
http://online.wsj.com/article/SB1000...wsj.html?dsk=y

Thoughts?
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Old 07-09-2013, 01:20 PM   #2
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Article is racist
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Old 07-09-2013, 01:23 PM   #3
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Very interesting, indeed. With one side of the aisle screaming about everything the POTUS does being unconstitutional, it's odd that they keep quiet about this. Is it because they are happy with the circumvention? I think that could be part of it. I'm surprised with this most recent move that we haven't heard more complaining from the left.

On a similar topic, it'll be interesting to see how the Affordable Care Act gets modified as the years go on. I have a feeling this is one of the first of MANY modifications that we'll see enacted.
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Old 07-09-2013, 01:30 PM   #4
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January 20, 2017 will be a happy day for alot of people. Unless Billary or Christie gets in there.
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Old 07-09-2013, 01:40 PM   #5
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Most of us who think the ACA is terrible are nevertheless anxious to hold Obama to his constitutional obligation to enforce the employer mandate on schedule. Why? Because we understand that doing so will expose how bad this act is, and may bring about repeal or significant modification sooner.

But, if Obama does as I expect and selectively ignores those of his constitutional duties he Morsi-esquely deems unenforceable, then I am all for the next conservative president taking the same liberty!
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Imagine the outcry if Mitt Romney had been elected president and simply refused to enforce the whole of ObamaCare.
Just kidding - I am not really for it, as I believe the integrity of the constitution is sacrosanct. Doesn't mean I cannot enjoy the irony for a moment or two!
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Old 07-09-2013, 02:17 PM   #6
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Selective enforcement/prosecutorial discretion is not unconstitutional. The reality is the US Code and the Federal Register are jam packed with a buncha rules and regulations, many of them contradicting each other. It has always been up to the executive to selectively choose which of the laws and regulations they want to enforce at any given moment. In a perfect society, there would be no such thing as selective enforcement and the laws would be few and effective. Unfortunately, we don't live in a perfect society so we have to live with the reality of prosecutorial discretion and the great potential for abuse that it invites.
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Old 07-09-2013, 02:43 PM   #7
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Selective enforcement/prosecutorial discretion is not unconstitutional. The reality is the US Code and the Federal Register are jam packed with a buncha rules and regulations, many of them contradicting each other. It has always been up to the executive to selectively choose which of the laws and regulations they want to enforce at any given moment. In a perfect society, there would be no such thing as selective enforcement and the laws would be few and effective. Unfortunately, we don't live in a perfect society so we have to live with the reality of prosecutorial discretion and the great potential for abuse that it invites.
Then please tell me what rule or regulation or law "contradicts" the ACA's requirement that the employer mandate be in effect for every month after December 31, 2013?

I know it is fun to get theoretical about this stuff, but your premise that this is not unconstitutional is simply not correct - the president must faithfully execute all laws. That you can cite examples of this happening in the past, based perhaps on some elastic application of the contradiction theory, does not amend or modify this simple requirement. But, if you are willing to live with a president who acts no differently than Morsi (ignoring extremes, for now) by selectively ignoring laws, then be prepared to live with the consequences when the results are disagreeable to you.

I am not willing to live with it. Of course, my only recourse is my vote and a whole lotta hope that more people in this country finally wake up.
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Old 07-09-2013, 03:30 PM   #8
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January 20, 2017 will be a happy day for alot of people. Unless Billary or Christie gets in there.
I don't understand your comment? It will literally be one of those 2. Slash they occupy 2 opposite ends of the political spectrum so one group will be happy with one, the other group will be happy with the second.
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Old 07-09-2013, 03:36 PM   #9
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I don't understand your comment? It will literally be one of those 2. Slash they occupy 2 opposite ends of the political spectrum so one group will be happy with one, the other group will be happy with the second.
He is stating the Republicans won't be happy with Christie either. They threw him overboard when he acknowledged Obama during Sandy costing them the election.
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Old 07-09-2013, 03:43 PM   #10
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Then please tell me what rule or regulation or law "contradicts" the ACA's requirement that the employer mandate be in effect for every month after December 31, 2013?

I know it is fun to get theoretical about this stuff, but your premise that this is not unconstitutional is simply not correct - the president must faithfully execute all laws. That you can cite examples of this happening in the past, based perhaps on some elastic application of the contradiction theory, does not amend or modify this simple requirement. But, if you are willing to live with a president who acts no differently than Morsi (ignoring extremes, for now) by selectively ignoring laws, then be prepared to live with the consequences when the results are disagreeable to you.

I am not willing to live with it. Of course, my only recourse is my vote and a whole lotta hope that more people in this country finally wake up.
The President is faithfully executing all laws. But he can't enforce all laws to their maximum effect all the time. That's the whole point. His Administration, by necessity, must pick and choose the laws they wish to enforce, the extent to which they enforce them, and at which time.

Think of a traffic officer making ticket quota. The law says you can't exceed the posted speed limit, but who does he cite? That's his choice. He can even choose not to cite anybody even though the vast majority of people are speeding when he observes them.

There is substantial wiggle room when it comes to "faithful execution" of laws.

This is not to say I like and support the PPACA or President Obama. This is simply the reality of government and the society we live in today.
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Old 07-09-2013, 03:57 PM   #11
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The President is faithfully executing all laws. But he can't enforce all laws to their maximum effect all the time. That's the whole point. His Administration, by necessity, must pick and choose the laws they wish to enforce, the extent to which they enforce them, and at which time.

Think of a traffic officer making ticket quota. The law says you can't exceed the posted speed limit, but who does he cite? That's his choice. He can even choose not to cite anybody even though the vast majority of people are speeding when he observes them.

There is substantial wiggle room when it comes to "faithful execution" of laws.

This is not to say I like and support the PPACA or President Obama. This is simply the reality of government and the society we live in today.
Sorry - bad analogy. Obama's sole reason for not enforcing the employer mandate is to avoid the political reality that such enforcement will very likely kill his legacy legislation. That is nothing like having too few cops to cite every speeder.

I'm not painting you as a supporter of Obama or his law. I just think you are too quick to give him a pass on this, and it is a shame. Compare this to the analogy in the WSJ article - a republican president choosing not to enforce a capital gains tax. Every president should expect to be held accountable.
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Old 07-09-2013, 04:07 PM   #12
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Sorry - bad analogy. Obama's sole reason for not enforcing the employer mandate is to avoid the political reality that such enforcement will very likely kill his legacy legislation. That is nothing like having too few cops to cite every speeder.

I'm not painting you as a supporter of Obama or his law. I just think you are too quick to give him a pass on this, and it is a shame. Compare this to the analogy in the WSJ article - a republican president choosing not to enforce a capital gains tax. Every president should expect to be held accountable.
Tax law is a vastly different issue and is governed by its own set of laws: the Internal Revenue code. It's a different legal animal entirely.

But this is regular statute law and regulations. Obviously there are political limits to prosecutorial discretion. It really just depends on how much latitude other people inside the Beltway are giving him. Judging from the reaction, he's weathering the fallout.

This isn't some fundamental, unprecedented breach of good government. The reality is it happens all the time. The only difference is his regulatory diktat happens to concern itself with a highly politicized law with far reaching consequences. Usually you have to tread lightly around such issues, but obviously the Obama Administration is not.

It doesn't matter whether I give him a pass or not. When the party out of power complains it almost always comes to naught. There are some things you can make political hay out of. This isn't one of them, because businesses are for the move and nobody else that has a real stake in the decision cares.
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Old 07-09-2013, 05:04 PM   #13
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The most useful analogy I can think of (and it's not apples to apples by any stretch) is the Obama Administration's hot-then-cold approach to enforcement of federal drug laws against medical marijuana dispensaries in states with compassionate use acts in place.
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Old 07-11-2013, 02:05 PM   #14
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The most useful analogy I can think of (and it's not apples to apples by any stretch) is the Obama Administration's hot-then-cold approach to enforcement of federal drug laws against medical marijuana dispensaries in states with compassionate use acts in place.
or DOMA or the immagration laws, or the Black Panthers at voting polls, or etc., etc. He is acting as if he is our dictator and the media and many people are sleeping right thru it.

The patriot act - under Bush an outcry of liberties and invasion of privacy. Under Obama - well, if you're not doing anything wrong, don't worry about it.

How do you gain complete control of a country? Control what the media reports. Then you can dictate policy, laws, etc. (study history)

When a republican pres. gets elected and tries this, it will be TOP STORY of the day, week, month etc. What will be reported when a repub pres decides not to enforce mandated insurance?
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Old 07-11-2013, 05:20 PM   #15
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the Black Panthers at voting polls

That really scared you, didn't it?
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