The Lawlessness of the ‘Fix’
Insurance companies would be insane to offer plans that failed to comply with the ACA.


Andrew C. McCarthy

Barack Obama could not have been more unequivocal. The telecommunications companies had to be punished for violating the letter of federal law. He didn’t want to hear about how President Bush told them it was okay.

One laughs now remembering how Obama’s base, the anti-anti-terrorist Left and its lawyer legions, used to call Bush the “imperial president” and thunder for his impeachment. Bush couldn’t hold a candle to our incumbent Caligula. He had no idea, for example, that presidents can just “waive” inconvenient parts of congressional statutes, like FISA.

FISA governs foreign intelligence surveillance. It requires the executive branch to get a judicial warrant before it can eavesdrop on alien terrorists and other foreign agents who threaten national security. Nevertheless, after al-Qaeda killed nearly 3,000 Americans on 9/11, Bush directed the NSA to wiretap suspected jihadists without obtaining court permission. He pressed the telecoms to help the NSA carry out the program — stressing the imperative of protecting American lives during a crisis, assuring these private companies that they would face no legal jeopardy for complying with his request.

Oh no you don’t, Obama and his base shrieked.

After the top-secret program was revealed, a paralyzing debate threatened to shut down American intelligence collection — at a time when we had troops in harm’s way in two war theaters and jihadists continued plotting mass-murder attacks against our homeland. By late 2007, recognizing the desperate need to reopen foreign-intelligence operations, Congress was poised to pass a FISA overhaul that would clarify the NSA’s surveillance authority. But passage was delayed for months because the hard Left refused to budge.

The Left’s goal was to bleed the telecoms dry with lawsuits over Bush’s warrantless surveillance program. Thus they pressured Democrats to block the passage of any FISA bill that would give telecoms the legal protection — in Obama parlance, the “waiver” — Bush had promised them. And the hard Left had a card to play: the contest for the Democratic presidential nomination.

Then-senator Barack Obama, himself a hard Leftist and an opportunist (yes, that’s redundant), realized that captivating the party’s Marxist wing — the anti-business, blame-America-first activists — was vital to capturing the nomination. So he duly dispatched his top campaign spokesman to proclaim to the progressive media, “To be clear: Barack will support a filibuster of any bill that includes retroactive immunity for telecommunications companies.”

Of course, you must keep in mind that this is Barack Obama we’re talking about — a.k.a. Barack “If You Like Your Health Insurance Plan You Can Keep Your Insurance Plan, $2,500 Premium Reductions, Obamacare Is Not a Tax, The Video Caused Benghazi, Raising the Debt Ceiling Is Unpatriotic, I Didn’t Know About Fast and Furious Until I Read About It in the Newspapers” Obama. So naturally, after he snagged the nomination and it came time to appeal to the sane part of the country in the general election, he did his usual 180 and supported the FISA overhaul with retroactive immunity for the telecoms.

The purpose here is not to prove, yet again, that Obama is a fraud, which would be like proving that Detroit may be a tad mismanaged. The purpose is also not to establish, yet again, Obama’s hypocrisy in condemning Bush’s flouting of a single statute when, once he assumed power, Obama so systematically violated laws that you’d think the oath says, “Take care that the laws be faithlessly executed.” The purpose is not even to reprise Thursday’s remarkable press conference, at which Obama — in the very moment of his humiliation over serial lying — brazenly repeated some of his most notorious and resoundingly disproved whoppers: the claim that his oft-repeated promise about Americans being able to keep their health-insurance plans somehow “ended up being inaccurate” when it was willfully false; the claim that this lie affects only the 5 percent of Americans in the individual market when he has known for years (as John Hinderaker shows) that Obamacare would force the cancellation of tens of millions of employer-provided plans; and so on.

No, the purpose is to highlight how insouciantly lawless and transparently political the president’s latest Obamacare “fix” is. I refer, of course, to Obama’s magnanimous proclamation that he now deigns to permit insurers to issue policies made illegal by the Obamacare statute — at least until the Democrats can get through the 2014 elections. This was frivolous to the point of malfeasance.

Let’s start with the basics. The president has no power to rewrite statutes — he is bereft of dictatorial power to legitimize what Congress has made a violation of law. This reflects our abiding conceit that we have “a government of laws and not of men,” ascribed by John Adams to the 17th-century political theorist James Harrington. As Justice Antonin Scalia recounts, Adams provided the best elaboration of this principle when he enshrined it in the 1780 Massachusetts Constitution (my italics):

The legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws, and not of men.

Not only is a president barred from writing or rewriting laws; he is required to enforce them as Congress has written them. The only exception is when he has a good-faith reason to believe they are unconstitutional, a claim Obama can hardly make about Obamacare while crowing that the Supreme Court has upheld it. (Actually, the Supreme Court invalidated half of Obamacare — the state Medicaid mandate — and rejected Obama’s Commerce Clause argument on the individual mandate, upholding it, at least for the time being, on a tax theory that Obama had indignantly disclaimed. But as we’ve seen, this is not a president who lets facts slow him down.)