Stanford Law School Professor Michael McConnell wrote in the Wall Street Journal in July that President Obama’s decision to suspend the employer mandate of the Affordable Care Act (“Obamacare”) for a year “raises grave concerns about his understanding of the role of the executive in our system of government.” And with his epic announcement at a press conference last Thursday that he has decided to suspend the regulations that caused the termination of millions of Americans’ health insurance plans (supposedly because they were “substandard”), he was at it again.
Specifically, Article II, Section 3, of the Constitution states that the president “shall take Care that the Laws be faithfully executed,” and McConnell emphasizes that “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.”
According to McConnell, a former federal judge, although the president may refuse to enforce laws he believes are unconstitutional, the Justice Department’s Office of Legal Counsel (which provides opinions to the president on such issues) “has 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.’”
In support of the legality of his most recent suspension of the regulations, the president claims “enforcement discretion.” But like his unilateral executive decision to delay the employer mandate, the start-date for the new insurance plans for individuals is defined in the statute – January 1, 2014 – and should not be subject to partisan political expediency.
In his article, McConnell offered additional examples of the president’s inclination to arbitrarily, unilaterally ignore the Constitutional prerogatives of the legislative branch of our government:
“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 and his minions have not only violated the Constitution by declining to implement certain duly enacted laws at all, and by arbitrarily distorting congressional mandates as in the examples above, but they have also interfered inappropriately with the enforcement of various federal laws. This was the lede of a June 13 article in the New York Times, for example:
“When President Obama proclaimed that those who commit sexual assault in the military should be ‘prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged,’ it had an effect he did not intend: muddying legal cases across the country. In at least a dozen sexual assault cases since the president’s remarks at the White House in May, judges and defense lawyers have said that Mr. Obama’s words as commander in chief amounted to ‘unlawful command influence,’ tainting trials as a result. Military law experts said that those cases were only the beginning and that the president’s remarks were certain to complicate almost all prosecutions for sexual assault.”
The Times cited a number of cases that have been dismissed or otherwise tainted by the president’s imprudent remarks.
At other agencies and in various ways, for political reasons the Obama White House has inappropriately or illegally interfered with federal agencies’ statutory procedures and requirements for the evaluation and approval of individual government-regulated products. Consider, for example, the feds’ treatment of a fast-growing, genetically engineered Atlantic salmon that reaches maturity twice as rapidly as its wild cohorts. The genetic changes – the addition to the genome of a growth hormone gene from the Chinook salmon and a regulatory DNA sequence from the ocean pout — confer no detectable difference in the fish’s appearance, ultimate size, taste, or nutritional value; it just grows faster, a tremendous economic advantage to those farming the fish in a closed water system.