He Can’t Do That

by John Yoo

President Obama does not have the legal power for his health-care decision yesterday, though the issue is not easy to resolve. The legal complexity might allow the White House to get away with another lawless act – as it has with the delay of the employer health-insurance mandate, the waiving of work-for-welfare rules, the free pass for marijuana users, and the nonenforcement of immigration laws.

The president announced on Thursday that, for the next year, insurers can keep offering the health plans that he or she held before the passage of Obamacare. The law requires all individual to purchase health care. The problem is that the administration, acting pursuant to the Affordable Care Act, has the authority to define what qualifies as health insurance. The Obama administration notoriously defined acceptable health-care policies to only include those that met expansive minimum requirements (like covering prenatal care, even for men). Preexisting health-care plans will be lost, because most of them do not meet these criteria.

Initially, Obama’s decision might seem to rely on the safe ground of the delegated authority under the ACA to define insurance policies. He could just order HHS to alter its regulation so that any and all insurance policies meet the insurance mandate.

The problem with Obama’s suspension, as I understand it, is that any regulation must undergo what is known as “notice and comment” under the Administrative Procedure Act. All regulations – issued pursuant to authority delegated to the executive branch by Congress – must first be publicly proposed, and then wait for a period of time for the public to make comments, and then the agency must issue the regulation with reasoned explanations for its policy choices. Changes to existing regulations usually must undergo the same process.

Obama’s decision yesterday, however, apparently is not to undergo “notice and comment” rulemaking. If Obama wants to snuff out the raging political fires engulfing his administration, his one-year delay has to have immediate effect, and he can’t wait around for the normal procedures required by the Administrative Procedure Act.

Without the normal process, Obama must be falling back upon the same unconstitutional claim to raw power that he has exercised in the past. Recall that when Congress wouldn’t pass the DREAM Act, which would give citizenship to some illegal immigrants brought to the U.S. as children, President Obama created a jury-rigged guest-permit system by refusing to enforce the immigration laws as written. This was unconstitutional: Under Article II, the president has the duty to take care that the laws are faithfully executed.

The president simply has no power to refuse to enforce a duly enacted law of Congress. The only exception is when Congress itself has enacted an unconstitutional law that tries to seize the constitutional authority of another branch of government or infringes on individual rights. But that power does not extend to refusing to enforce the law because of policy differences with the statutory choices of Congress in its enumerated authorities. Here, there is no plausible claim that Congress has infringed the rights of the other branches in passing the ACA. If anything, it has delegated power to the president, not taken it away. If the ACA does not violate the powers of the other branches, the president has no other power to refuse to enforce the law. Once again, President Obama has refused to respect the very Constitution he has sworn to uphold.