The Magazine

Lawlessness in the Executive

Sep 2, 2013, Vol. 18, No. 48 • By JEFFREY H. ANDERSON
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After congressional members of both parties denounced Obama’s claim that the president possesses unilateral authority to suspend the law, Obama told the New York Times, “[I]f Congress thinks that what I’ve done is inappropriate or wrong in some fashion, they’re free to make that case. .  .  . But ultimately, I’m not concerned about their opinions—very few of them, by the way, are lawyers, much less constitutional lawyers.”

This is hardly the only extralegal action that Obama, a former part-time constitutional law lecturer, has taken as he tries to boost the flagging prospects of his signature legislation. In an effort to keep insurance costs from rising even more than they are already rising under Obamacare, he suspended the legislation’s mandated caps on out-of-pocket health costs. He also unilaterally suspended the law’s income-verification requirements for its state-based exchanges, which means that massive quantities of taxpayer-funded subsidies will now flow out based on the “honor system.” Meanwhile, the plain text of Obamacare says such subsidies cannot flow through its federally run exchanges (only through its state-run ones), but Obama is ignoring this legal limitation and proceeding as if it didn’t exist. Obamacare also doesn’t provide exchange subsidies for those making over $100,000 a year—but Obama personally (and successfully) lobbied the Office of Personnel Management to rule, contrary to the legislative text, that such subsidies can now flow to a certain subset of those making six figures: those working in Congress.

Obama’s lawlessness has not been limited to immigration and Obamacare. After seeking U.N. rather than congressional authorization to intervene in Libya, he overtly violated the War Powers Act. Offering no pretense that the act is unconstitutional—the only reasonably justifiable basis for ignoring it—he refused to obey the 60-day deadline for gaining congressional authorization for continued use of the armed forces. As ABC News reported at the time, “Experts say this is the first time an American president has defied the War Powers Resolution’s deadline for participation in combat operations without any concurrent steps by Congress to fund or otherwise authorize the role.”

On another front, in an effort to circumvent the advice-and-consent role of the Senate (which was—and is—controlled by his own party), Obama made three “recess” appointments to the National Labor Relations Board (NLRB) while the Senate was in session. A federal appellate court declared the appointments unconstitutional on the basis that recess appointments must be made during recesses. Obama’s press secretary Jay Carney, amazingly, said the decision “does not have any impact.” With the White House’s blessing, the illegally constituted NLRB has continued to issue rulings as if the court’s decision had never been rendered.

Obama has also ignored the mid-1990s welfare-reform law, allowing states to strip the “work” out of workfare; has refused to enforce federal marijuana laws; has neglected—in the wake of the revelation that his economic “stimulus” was costing taxpayers $278,000 per job—to release timely reports in the manner that’s mandated by the text of the “stimulus” legislation; and has failed to meet more than half of the legal deadlines specified in Obamacare.

So how exactly can “a government of laws and not of men” work if the chief executive refuses to fulfill his constitutional duty to “take Care that the Laws be faithfully executed”?

Two years after the death of James Madison (the last surviving Constitutional Convention delegate), a young Abraham Lincoln preached steadfast regard for the law and warned his fellow countrymen to beware of leaders who might use lawless means to achieve their ends. Lincoln argued that “the history of the world tells us” that “supporting and maintaining [a constitutional] edifice that has been erected by others” will not satisfy certain “men of ambition and talents” as they “seek the gratification of their ruling passion.” When encountering such threats, Lincoln said, the solution is to rely on the people—specifically on their “general intelligence,” “sound morality,” and “reverence for the constitution and laws.”

Republicans should heed Lincoln’s advice: They should defend the rule of law and trust the American people.

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