Law & the Courts

Why Let the Law Get in the Way?

Obama’s executive amnesty is merely the latest example of his ignoring inconvenient legal reality.

Reckless disregard. It’s a phrase in legal writing that means “gross negligence without concern for danger to others.” And it’s a phrase that characterizes much of the attitude toward law of an administration headed by a man sometimes described as a constitutional scholar.

The most recent case in point is the decision by federal district judge Andrew Hanen in Texas enjoining the operation of Barack Obama’s order barring prosecution of something like 4 million illegal immigrants.

The administration has a plausible legal argument: The president is ordering immigration authorities to exercise discretion, just as a prosecutor does not bring all possible indictments. In his 123-page opinion, Judge Hanen disagrees. “The DHS cannot reasonably claim that, under a general delegation to establish enforcement priorities, it can establish a blanket policy of non-enforcement that also awards legal presence and benefits to otherwise removable aliens.”

That tracks with the president’s boast that, when he signed the order, “I just took an action to change the law.”

But Judge Hanen’s decision rests on a narrower ground — that the government, in issuing work permits and authorizing the issuance of driver’s licenses, did not follow the rules of the Administrative Procedure Act. The administration will appeal and the outcome must be regarded as uncertain.

Meanwhile, hundreds of thousands of illegal immigrants have had their plans disrupted and, should the administration prevail on appeal, their status could still be revised by a later president. Issuing this order to, belatedly, keep a campaign promise was negligence without concern for the possible danger to others.

Obama has also acted with reckless disregard in administering the Obamacare statute he cites as his greatest domestic achievement. More than three dozen times he has unilaterally ordered non-enforcement of politically problematic provisions.

And the entire structure of the act is in peril because of one of those actions in the King v. Burwell case, scheduled for argument in the Supreme Court on March 4.

The Obamacare legislation authorizes subsidies to be paid only in states with health-insurance exchanges “established by the state.” But Obama’s Internal Revenue Service decided that it would also authorize them in the 36 states which did not establish an exchange but opted for using the federal exchanges authorized by the statute.

Mainstream media are filled these days with stories of how people in these states will be left without insurance if the Court reads the statute as written. Grave predictions are made that multiple deaths will result. That’s advocacy journalism, designed to influence the Court to rule the government’s way. Still, undoubtedly many people will be inconvenienced by the overturning of an administrative ruling they relied on.

But whose fault is that? The Obama Democrats wrote a law that, as you can watch their expert Jonathan Gruber explain on video, was designed to bludgeon the states into setting up their own exchanges. When it became apparent that many wouldn’t, the administration — not Congress — rewrote the law to suit its political convenience.

Reckless disregard of the law is an ingrained habit in President Obama’s administration. After six years its legal interpretations have been rejected by unanimous rulings of the Supreme Court more often than in the eight years of George W. Bush’s administration.

The Court ruled 9–0 that Obama couldn’t make recess appointments when the Senate said it was not in recess. It ruled 9–0 that the government couldn’t decide whom a church could classify as clergy. It ruled 9–0 that the government couldn’t fine landowners $75,000 a day to appeal an administrative order blocking construction in an alleged wetland.

The Constitution authorizes Congress to pass laws and requires the president to faithfully execute them. Obama seems to take that as not so much a requirement as a suggestion, one he sees fit to ignore when he wants to “change the law.”

The Constitution’s framers wrote the faithful-execution clause because they remembered that King James II claimed and exercised the power to suspend laws passed by Parliament whenever he liked. James was forced to flee England in the Glorious Revolution of 1688, and in 1689 Parliament passed a Bill of Rights declaring “that the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal.”

There is a continuum between lawful exercise of discretion and unlawful suspension of the law. Time and again, Obama has lurched toward the wrong end of it.

— Michael Barone is senior political analyst for the Washington Examiner. ©2015 The Washington Examiner. Distributed by

Michael Barone is a senior political analyst for the Washington Examiner, resident fellow at the American Enterprise Institute, and longtime co-author of The Almanac of American Politics. © 2018


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