President Obama tramples the Constitution again, and finally there’s some outrage

Henry Miller Senior Fellow, Pacific Research Institute.
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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.

The availability of such a salmon would also be a tremendous boon to consumers seeking low-fat and affordable options for sources of protein, especially in the face of food price inflation and the obesity epidemic.

After several years of rumination, regulators concluded that the AquAdvantage salmon has no detectable differences and that it “is as safe as food from conventional Atlantic salmon.” And because the fish will all be sterile females and farmed inland, there is negligible possibility of any sort of “genetic contamination” of the gene pool or other environmental effects. (Even in a worst-case scenario, these fish are maladapted to compete in the wild.)

When the FDA completed its Environmental Assessment in April 2012 and was ready to publish it — the last necessary hurdle before approving the salmon for marketing — the decision-making was mysteriously expropriated by the White House. The review process vanished from sight until December, when the FDA was finally permitted to publish the EA (the unsurprising verdict: “no significant impact”), which should then have gone out for a brief period of public comment. The comment period, which was extended, ended on April 26, but the salmon still has not been approved.

Some of the reasons for the delay in FDA’s publishing the needed Environmental Assessment in April 2012 were revealed by science writer Jon Entine. He related that the White House interference “came after discussions late last spring [2012] between Health and Human Services Secretary Kathleen Sebelius’ office and officials linked to Valerie Jarrett at the Executive Office [of the President], who were debating the political implications of approving the [genetically modified] salmon. Genetically modified plants and animals are controversial among the president’s political base, which was thought critical to his reelection efforts during a low point in the president’s popularity.”

There’s another sordid influence at work here in obstructing the machinery of government. According to three independent, reliable sources, the continued delay in the approval of the AquAdvantage salmon is due to opposition to it from assistant White House chef Sam Kass. A chef who has a bachelor’s degree in history influencing critical governmental regulatory decisions that are typically made by Ph.D. scientists and professional regulators? What’s next – the Obamas’ chiropractor deciding whether a new Alzheimer’s drug or Hepatitis C vaccine should be approved?

Citing the illegality of the White House actions in this instance, Entine wrote last December, “The Federal Food, Drug & Cosmetic Act requires that Health and Human Services secretary approve the AquaBounty application within six months after compliance with Section 512.”  The company was notified by the FDA early this year that every major component of its application had been successfully addressed, but as usual, HHS Secretary Kathleen Sebelius has rolled over when told to by the White House.

At least insofar as Obamacare is concerned, these cynical machinations by the Obama administration are finally eliciting outrage from the media and the public. But there is more, much more, that receives little attention. The many examples of Obama administration malfeasance assure that history will regard this president as a careless, callow politician who acts impulsively and with disregard for either truthfulness or the rule of law.

Depending on the outcome of the 2014 congressional elections, could an impeachment be in the offing?

Henry I. Miller, a physician and former director of the FDA’s Office of Biotechnology, is the Robert Wesson Fellow of Scientific Philosophy and Public Policy at Stanford University’s Hoover institution.