The Corner

From the Constitution to Pandora’s Box

During the presidency of Barack Obama, we’ve learned something about our Constitution that we did not know: The president can simply refuse to enforce whatever laws he doesn’t like. Not as a matter of prosecutorial discretion, mind you, but in general, as to whole categories of people.

First it was DOMA, in a sop to the gay lobby. Then it was the immigration laws, which the president has decided not to enforce against young illegal immigrants. Now it’s the crucial employer-insurance mandate in Obamacare, which is “suspended” for a year, because the president feels like it. I say “crucial” because, absent the employer mandate, the official estimate of how much Obamacare is going to cost, and how it’s going to affect the number of uninsured, is no longer valid.

Employers shouldn’t have to provide health insurance at all. But without it, more people will go on the state insurance exchanges, where their health insurance is subsidized. That subsidy is the single-payer essence of Obamacare. Hence, suspending the employer mandate just brings us one step closer to the single-payer system that liberals wanted all along.

Others are busy fleshing out the vast implications for the nation’s health-care market. But let’s focus on the constitutional implications for a moment.

The Constitution states that the president “shall take care that the laws be faithfully executed.”  Not “shall take care that the laws be faithfully executed if he feels like it,” which is how the Obama administration apparently reads the provision. Rather, he must see that the laws are faithfully executed, period. Otherwise, there’s no point to the veto power. The president can simply decide, by his sole imprimatur, to nullify any law he doesn’t like. 

Alas, there is no way to enforce the president’s obligation to see that the laws are faithfully executed. The courts will not issue a mandamus — it is a “political question.” It’s probably not a “crime or misdemeanor” for him to fail to enforce a law, so he probably can’t be impeached for it. The reason presidents have enforced the rule of law is, generally, the people’s expectation that they will. But if the president simply ignores the Constitution, and the people cheer him on (as happened during the administration of Franklin D. Roosevelt), then where does that leave us?

In the middle of a wide-open Pandora’s box, that’s where.

The Obama administration’s approach to executive power makes a mockery of constitutional process. His supporters appear totally oblivious to the precedent they’ve set, and to how sorry they could be one day.

What if future presidents do exactly the same thing? What if a future president announces that he will no longer enforce any aspect of the Fair Labor Standards Act and that the minimum wage will no longer be enforced?  What if a future president decides to stop collecting income taxes on his supporters?

If a conservative president did anything like that, liberals would be crying “Dictatorship!” Yet they cheer when Obama does it. By establishing the precedent that the president can ignore the law whenever it suits him, the Obama administration has struck a grievous blow against the Constitution he is sworn to defend.

EDITOR’S NOTEThis piece has been amended since its original posting.

Contributing editor Mario Loyola is senior fellow and Director of the Center for Competitive Federalism at the Wisconsin Institute for Law and Liberty. He began his career in corporate ...

Most Popular

Film & TV

Trolling America in HBO’s Euphoria

Of HBO’s new series Euphoria, its creator and writer Sam Levinson says, “There are going to be parents who are going to be totally f***ing freaked out.” There is no “but” coming. The freak-out is the point, at least if the premiere episode is to be believed. HBO needs a zeitgeist-capturing successor to ... Read More
Law & the Courts

Kamala Harris’s Dreadful DA Record

In 2005, the sharp-elbowed, ambitious district attorney of San Francisco had the opportunity to correct an all-too-common prosecutorial violation of duty that the leading expert on prosecutorial misconduct found “accounts for more miscarriages of justice than any other type of malpractice.” Rather than seize ... Read More
Politics & Policy

The Case against Reparations

Editor’s Note: This piece was originally published on May 24, 2014. Ta-Nehisi Coates has done a public service with his essay “The Case for Reparations,” and the service he has done is to show that there is not much of a case for reparations. Mr. Coates’s beautifully written monograph is intelligent ... Read More
Film & TV

In Toy Story 4, the Franchise Shows Its Age

For a film franchise, 24 years is middle-aged, bordering on elderly. Nearly a quarter-century after the first Toy Story, the fourth installment, which hits theaters later this week, feels a bit tired. If earlier films in the franchise were about loss and abandonment and saying goodbye to childhood, this one is ... Read More
World

The China-Iran-Border Matrix

President Trump and Secretary Pompeo have worked the U.S. into an advantageous position with a consistent policy toward bad actors. We are now at a point that even left and right agree that China’s rogue trajectory had to be altered. And while progressive critics of Beijing now are coming out of the woodwork ... Read More
Politics & Policy

Joe Biden’s Segregationist Problem

By any standard, Joe Biden is the Democratic presidential front-runner. The poll averages at RealClearPolitics, for example, show Biden with a commanding 32–15 lead over Bernie Sanders in national polls and leading Sanders by 27 percentage points in South Carolina, 13 in New Hampshire, 13 in Nevada, and six in ... Read More