The Magazine

Lawlessness in the Executive

Sep 2, 2013, Vol. 18, No. 48 • By JEFFREY H. ANDERSON
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As was quite clear at the time, the biggest mistake that Mitt Romney’s campaign made in 2012 was not aggressively attacking Obamacare. What may well have been its second-biggest mistake, however, was less noticed: the striking silence in the face of President Obama’s announcement that he would no longer deport illegal immigrants under 30 years of age.

This was pure lawlessness, even by the president’s own earlier admission. When asked at a spring 2011 Univision town hall why he didn’t simply stop the deportation of young illegals via executive order, Obama replied,

With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books. .  .  . Congress passes the law. The executive branch’s job is to enforce and implement those laws. .  .  . There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply, through executive order, ignore those congressional mandates would not conform with my appropriate role as president.

Yet five months before the election, the Obama administration announced that it would no longer deport most illegals under the age of 30 who had entered the United States before adulthood. The main sound emanating from the Romney campaign: crickets.

The Romney camp’s decision to ignore this brazen move was a conscious calculation that, at its core, reflected a lack of faith in the American people. Team Romney thought voters would focus on the perceived merits of Obama’s new decree (which the Romney campaign believed would be popular) and wouldn’t much care that Obama was ignoring the Constitution and violating his oath of office. This miscalculation helped cost Romney the election and emboldened Obama in his lawlessness. But Republicans make similar mistakes on a regular basis, failing to trust in Americans’ devotion to the Constitution and the rule of law.

In truth, Americans do support and believe in the law. A century ago, Woodrow Wilson tried to convince his countrymen that the Founders had gotten it wrong; that the powers of government shouldn’t be separated and checked but rather “coordinated” and “synthesi[zed],” enabling government to “act with straightforward and unquestionable power, .  .  . choosing its policies and making good its authority, like a single organism.” After all, he said, “we shall remain a nation only by obeying leaders.”

This is clearly Barack Obama’s view. But one can say with almost equal certainty that it is not the view of the American people, who were never won over by Wilson’s argument. Republicans would do well to highlight and condemn Obama’s lawlessness, which is largely unprecedented and threatens our constitutional order. They should channel the spirit of Thomas Paine, who wrote, “as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.” Unfortunately, this has not been the case under Obama.

Shortly before July 4, Obama unilaterally suspended for a year Obamacare’s employer mandate—its requirement that most businesses provide government-sanctioned health insurance. In refusing to execute this part of the law (which, according to the statute itself, “shall apply to months beginning after December 31, 2013”), Obama invited the question of whether a future Republican president could simply refuse to enforce, say, Obamacare’s exchange-subsidy provisions (which, by law, “shall apply to taxable years ending after December 31, 2013”). Asked whether his successor could “pick and choose whether they’ll implement your law and keep it in place,” Obama offered an astonishing reply: “I didn’t simply choose to delay this on my own. This was in consultation with businesses all across the country.” Apparently, Obama has rewritten Article II of the Constitution; henceforth the president shall take care that the Laws be faithfully executed unless he and some businessmen decide differently. As a Tammany machine politician famously said, “What’s the Constitution among friends?”

When the House of Representatives proposed legislation later in July to delay Obamacare’s employer mandate by law, in the wake of Obama’s decision to delay it by executive fiat, the Obama White House called the legislation “unnecessary” and promised Obama would veto it. Republicans were nevertheless joined by 35 Democrats in passing that legislation through the House. Several weeks later, Obama—as if having forgotten this initiative—declared that, in “a normal political environment,” he could easily have gotten the House to pass legislation delaying the employer mandate, but “we’re not in a normal political atmosphere,” so he had no choice but to act unilaterally.

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