The Magazine

A Careless Executive

Obama’s failure to do his constitutional duty.

Aug 5, 2013, Vol. 18, No. 44 • By TERRY EASTLAND
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Garrett’s resolution directs attention to the Take Care Clause. The clause imposes a duty on the president in the exercise of his executive power. Because the laws he must execute include the Constitution, he may not enforce laws he believes in good faith are unconstitutional—an interpretation made by the Justice Department’s Office of Legal Counsel, in Democratic and Republican administrations alike. Enforcement of constitutionally valid laws, however, cannot take place in every circumstance, it is generally agreed. “The ordinary, efficient administration of the law requires discretionary decision making on the part of enforcers,” write Robert J. Delahunty and John C. Yoo (both veterans of OLC) in their timely article on the Take Care Clause in the March 2013 issue of the Texas Law Review. Still, “that does not mean that all breaches of the duty are tolerable.” The president may not refuse to enforce a law he disagrees with in terms of policy, or that he dislikes because of its political impact.

How courts might respond to a claim that the president lacked authority to delay the mandate—that such authority is not provided in those 18 precedents, or in the IRC or any other federal statute, or in the Constitution—is hard to say. Such a claim would have to be brought by someone with “standing”—someone who suffers a present or imminent injury that a court can remedy.

Employers would be hardpressed to meet that requirement, since the delay is intended to give them relief. Workers who aren’t offered insurance by their employer during 2014 and wind up being fined for not getting their own coverage (under the ACA’s “individual mandate”) might have a shot, though still it would seem a long one, at standing. Even if a party with standing could be found, and a challenge to the president’s authority made, a ruling against the government seems an uphill battle. As Delahunty and Yoo point out, “the prevailing standard of review for challenges to executive nonenforcement decisions is extraordinarily lenient.” This is so in part because courts have often been reluctant in separation of powers cases to address constitutional issues.

Of course, it’s not a lawsuit that House Republicans are hoping for. The argument they’re making is political, in the best sense of the word, inasmuch as it respects the Constitution by insisting on its place as our guide to political action—action that in the matter at hand should have included Congress, and still could.

Terry Eastland is an executive editor at The Weekly Standard.

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