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No Rule by Decree

Obama follows in Truman’s (unconstitutional) footsteps.

Apr 30, 2012, Vol. 17, No. 31 • By MICHAEL STOKES PAULSEN
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It is then that the president, Barack Obama, seizes on the Truman-like “solution” of simply ordering private companies—insurance companies this time—to provide contraception, sterilization, and abortion drugs, and to provide them free, to workers whose employers object to providing them. In essence, he proclaims a right to conscript private businesses to do his bidding, even when Congress has nowhere authorized such action.

To be sure, the idea that insurance companies will provide services free is mere pretense. And it does nothing to cure the violation of First Amendment religious freedom. By entering into contracts with insurance companies to provide health insurance for employees or students, religious employers trigger the required coverage of services they oppose as a matter of faith. And insurance companies will simply pass the costs right back to the objecting religious organizations in the form of higher premiums. It’s a shell game. For the employers, the only legal alternative is to pay heavy fines.

But while the Obama shuffle is a ruse and a violation of the First Amendment, it is also a flagrant violation of Youngstown. A president may not simply decree that private companies be run in conformity with the president’s preferred policies and politics. Just as Truman could not lawfully seize steel mills and order a wage hike, Obama cannot command insurance companies to provide a “free” benefit if Congress has not conferred such authority. Obama’s contemplated conscription—which he won’t turn into an executive order until after the election—is an obvious and outrageous abuse of presidential power. 

Recently, the professor-president lectured the Supreme Court that it would be “judicial activism” to hold any part of his health care program unconstitutional. As Youngstown demonstrates, however, the Court sometimes must exercise the duty to strike down actions of Congress or the president that exceed their constitutional powers. By Obama’s definition, Youngstown was judicial activism because it limited presidential power to seize an industry. But as Youngstown made clear, when political leaders make up powers not in the Constitution, it is the Court’s constitutional duty to rein them in.

Michael Stokes Paulsen is distinguished university chair and professor of law at the University of St. Thomas.

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