Like King James II, the president decides not to enforce laws he doesn’t like. That’s an abuse of power.
By MICHAEL W. MCCONNELL
President Obama’s decision last week to suspend the employer mandate of the Affordable Care Act may be welcome relief to businesses affected by this provision, but it raises grave concerns about his understanding of the role of the executive in our system of government.
Article II, Section 3, of the Constitution states that the president “shall take Care that the Laws be faithfully executed.” 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.
This matter—the limits of executive power—has deep historical roots. During the period of royal absolutism, English monarchs asserted a right to dispense with parliamentary statutes they disliked. King James II’s use of the prerogative was a key grievance that lead to the Glorious Revolution of 1688. The very first provision of the English Bill of Rights of 1689—the most important precursor to the U.S. Constitution—declared that “the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.”
To make sure that American presidents could not resurrect a similar prerogative, the Framers of the Constitution made the faithful enforcement of the law a constitutional duty.
The Justice Department’s Office of Legal Counsel, which advises the president on legal and constitutional issues, has repeatedly opined that the president may decline to enforce laws he believes are unconstitutional. But these opinions have 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.”
Attorneys general under Presidents Carter, Reagan, both Bushes and Clinton all agreed on this point. With the exception of Richard Nixon, whose refusals to spend money appropriated by Congress were struck down by the courts, no prior president has claimed the power to negate a law that is concededly constitutional.
In 1998, the Supreme Court struck down a congressional grant of line-item veto authority to the president to cancel spending items in appropriations. The reason? The only constitutional power the president has to suspend or repeal statutes is to veto a bill or propose new legislation. Writing for the court in Clinton v. City of New York, Justice John Paul Stevens noted: “There is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes.”
The employer mandate in the Affordable Care Act contains no provision allowing the president to suspend, delay or repeal it. Section 1513(d) states in no uncertain terms that “The amendments made by this section shall apply to months beginning after December 31, 2013.” Imagine the outcry if Mitt Romney had been elected president and simply refused to enforce the whole of ObamaCare.
This is not the first time Mr. Obama has suspended the operation of statutes by executive decree, but it is the most barefaced. 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 defended his suspension of the immigration laws as an exercise of prosecutorial discretion. He defended his amending of No Child Left Behind as an exercise of authority in the statute to waive certain requirements. The administration has yet to offer a legal justification for last week’s suspension of the employer mandate.
Republican opponents of ObamaCare might say that the suspension of the employer mandate is such good policy that there’s no need to worry about constitutionality. But if the president can dispense with laws, and parts of laws, when he disagrees with them, the implications for constitutional government are dire.
Democrats too may acquiesce in Mr. Obama’s action, as they have his other aggressive assertions of executive power. Yet what will they say when a Republican president decides that the tax rate on capital gains is a drag on economic growth and instructs the IRS not to enforce it?
And what of immigration reform? Why bother debating the details of a compromise if future presidents will feel free to disregard those parts of the statute that they don’t like?
The courts cannot be counted on to intervene in cases like this. As the Supreme Court recently held in Hollingsworth v. Perry, the same-sex marriage case involving California’s Proposition 8, private citizens do not have standing in court to challenge the executive’s refusal to enforce laws, unless they have a personal stake in the matter. If a president declines to enforce tax laws, immigration laws, or restrictions on spending—to name a few plausible examples—it is very likely that no one will have standing to sue.
Of all the stretches of executive power Americans have seen in the past few years, the president’s unilateral suspension of statutes may have the most disturbing long-term effects. As the Supreme Court said long ago (Kendall v. United States, 1838), allowing the president to refuse to enforce statutes passed by Congress “would be clothing the president with a power to control the legislation of congress, and paralyze the administration of justice.”
Mr. McConnell, a former judge on the U.S. Court of Appeals for the Tenth Circuit, is a professor of law and director of the Constitutional Law Center at Stanford Law School and a senior fellow at the Hoover Institution.
A version of this article appeared July 9, 2013, on page A13 in the U.S. edition of The Wall Street Journal, with the headline: Obama Suspends the Law.
By ERIC LICHTBLAU
WASHINGTON — In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyber attacks, officials say.
The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.
The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.
Last month, a former National Security Agency contractor, Edward J. Snowden, leaked a classified order from the FISA court, which authorized the collection of all phone-tracing data from Verizon business customers. But the court’s still-secret decisions go far beyond any single surveillance order, the officials said.
“We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.”
In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.
The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.
That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”
Read More: Here
Could the recent Supreme Court ruling on the federal health care act bring conservative Republicans back to their state-sovereignty, nullification roots?
It just might.
Last week, two major conservative publications — National Review and The American Spectator — featured stories flirting with nullification. On top of that, millions of conservative Republicans got a nullification lesson on Thursday when Walter Williams guest-hosted “The Rush Limbaugh Show.”
Many Americans associate nullification with racism, because they think Southern states used the principle to protect slavery. In fact, northern abolitionists advanced nullification and appealed to “states’ rights” in their battle against fugitive slave laws. And while modern Republicans generally respond tepidly to the idea of nullification, their party was born out of a nullification fight in Wisconsin, a historical fact that long ago fell down an Orwellian memory hole.
Historically speaking, the Republican Party is the party of nullification.
In March of 1854, Benammi Stone Garland, two federal marshals and several others broke into the home of Joshua Glover. They clubbed him over the head, dragged him bleeding from his shanty and locked him up in the Milwaukee jail. Glover was an escaped slave, and Garland his “owner.” Legally, Garland had every right to take his “property” into custody and drag Glover back to Missouri. The Constitution provided for the return of escaped slaves. The Fugitive Slave Act of 1850 created the mechanism. The act denied due process to anyone accused of escaping slavery. Federal courts authorized the capture of fugitive slaves simply on the word of their “owners.” The accused weren’t even allowed to testify in their own defense. The Fugitive Slave Act was wildly unpopular and actively resisted in every northern state.
Wisconsinites quickly acted. Led by Sherman Booth, an abolitionist newspaper editor, several thousand people gathered on the steps of the Milwaukee courthouse. When a federal judge refused to release Glover on a writ of habeas corpus, the throng broke him out of jail and ushered him onto the famed Underground Railroad. Glover ultimately escaped to freedom in Canada.
The events of that spring day sparked a five-year battle between Wisconsin and the federal government. The feds charged Booth for violating the Fugitive Slave Act, but the Wisconsin Supreme Court freed him on a writ of habeas corpus, declaring the Fugitive Slave Act unconstitutional. Justice Abram Smith wrote, “Every jot and tittle of power delegated to the Federal Government will be acquiesced in, but every jot and tittle of power reserved to the States will be rigidly asserted.”
The aftermath of Glover’s escape led directly to the formation of the Republican Party. Anti-slavery meetings in the spring of 1854 spurred by the fight between Wisconsin and the federal government led to a statewide convention in July. The attendees formed a party and nominated candidates for the November elections. They called their new party “the Republican Party.” It flexed its muscle that fall, winning two of three congressional races and taking control of the Wisconsin legislature.
Republicans lost ground in 1855 when the party added temperance to its platform. But with the battle over slavery turning bloody in Kansas, Wisconsin Republicans turned things around in the 1856 elections. The fledgling party, promoting free soil and state sovereignty, took all three congressional seats, and grabbed firm control of the state assembly and senate. The Republican-controlled state legislature passed a resolution supporting the Wisconsin Supreme Court in nullifying the Fugitive Slave Act and interposing for Booth. It also defied federal law by passing a Personal Liberty Act. Among other things, the law gave county courts the power to issue writs of habeas corpus to fugitive slaves, made it the duty of district attorneys to seek their discharge and established fines of $1,000 for kidnapping free blacks.
The selection of Wisconsin’s next U.S. senator reveals the Republican Party’s deep state-sovereignty roots. The caucus put two resolutions to the candidates. The first endorsed Jeffersonian constitutionalism as expressed in the Kentucky Resolutions of 1798, which nullified the Alien and Sedition Acts. The second asserted that Republicans had a duty to stand by the state Supreme Court to “pronounce final judgment” in all matters regarding the reserved powers of the states and to shield residents from unconstitutional federal acts. Early front-runner Timothy Howe heartily endorsed the first resolution but equivocated on the second. He ultimately lost to James Doolittle, who pledged his full support for both resolutions.
The Republican Party grew from the soil of state sovereignty and nullification. Now is the time for Republicans to rediscover those roots and support state nullification of the federal health care act.
Mike Maharrey serves as the national communications director for the Tenth Amendment Center, a think tank promoting constitutional fidelity and working to restore a proper balance of power between the state and federal governments. You may contact Mike at: email@example.com.
- Nullification …. The Roots of the Republican Party (youviewedblog.wordpress.com)
- Republicans repealed the Fugitive Slave Act (grandoldpartisan.typepad.com)
- Stopping NDAA (personalliberty.com)
- Oklahoma Seeks Nullification of ObamaCare, Power To Arrest Federal Agents (libertycrier.com)
- Oklahoma State Rep. to Propose ObamaCare Nullification Bill (libertycrier.com)
- Should We Obey All Laws? (johnmalcolm.me)
President Obama promised to make health care more affordable, but instead he’s done the opposite. The White House and congressional Democrats slipped 20 new taxes into the Obamacare legislation to raise $500 billion to help pay for the new entitlement’s $2.6 trillion cost. It’s now up to the Supreme Court to provide relief.
Mr. Obama claims to want to raise taxes only on “millionaires and billionaires,” but his signature health care law hits the middle class hard. Americans for Tax Reform (ATR) analyzed the 2,700-page bill and came up with a comprehensive list of its levies.
“Obama promised no taxes of any kind for those who earn less than $250,000. Obamacare broke that pledge repeatedly,” ATR President Grover Norquist told The Washington Times. “They deliberately hid the taxes and wisely understood that delaying the pain by making the effective date after the election, maybe you could get through the election.”
Until last year, people could pay for over-the-counter medications with tax-free Flexible Savings Accounts and Health Savings Accounts. No more, thanks to Obamacare’s medicine cabinet tax. Starting on Jan. 1, these tax-free accounts will be capped at $2,500, punishing families who face higher than normal medical expenses. The threshold for deducting those costs will also go up from 7.5 percent to 10 percent of adjusted gross income in 2013.
The left mistakenly thinks companies will just absorb the extra charges from Uncle Sam and not pass them along to consumers. Medical-device manufacturers will be smacked with a 2.3 percent tax in the new year, driving up the costs of things like wheelchairs, stents and pacemakers. Innovative drug companies already are sending Washington $2.3 billion in taxes for a surcharge on their share of sales, which helps explain why prescription-drug spending will see a projected 10.7 percent increase in 2014.
That’s also when health-insurance companies face a new surcharge on sales that will result in an estimated $350 to $400 increase in annual premiums. So much for the president’s promise to reduce the cost of insurance by $2,500.
Americans who refuse to go along with Obamacare by buying a policy not approved by the government will be charged 1 percent of their income in 2014, rising to 2.5 percent in 2016. Employers with more than 50 employees who don’t offer health coverage and have at least one employee who qualifies for a health tax credit will be penalized $2,000 per person. If the employee receives coverage through this exchange, the penalty goes up to $3,000. An employer with a 30- to 60-day enrollment waiting period will have to pay $400 per person.
These new penalties on employers who don’t provide the health coverage dictated by bureaucrats will amount to $113 billion. Expect companies to pay less and lay off more. Growth will be further stunted when January brings a new levy on investment income for those who earn more than $200,000, making the tax on capital gains 23.8 percent and dividends a staggering 43.4 percent.
This monster law already has created 159 new programs and boards in Washington. As Mr. Norquist explained, “It’s a huge increase in the size and scope of government because the government is getting control of 15 percent of the economy.” The Supreme Court needs to reject this unconstitutional power grab and return the money to the people who actually earned it.
Emily Miller is a senior editor for the Opinion pages at The Washington Times.
- Critical Time: Justices Hear Arguments Against Obamacare (fox4kc.com)
- Justices Seem to Signal They Will Not Punt On ObamaCare, But Will Rule On Its Constitutionality (minx.cc)
- Obamacare In The Supreme Court 101: Deliberations, Rulings And Impacts (thedaleygator.wordpress.com)
- ObamaCare on Trial, Day One: A Case of “Inartful Drafting By Congress” (reason.com)