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the official estimate of how much Obamacare is going to cost, and how it’s going to affect the number of uninsured, is no longer valid.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.

Mario Loyola is a senior fellow at the Competitive Enterprise Institute, the director of the Environmental Finance and Risk Management Program of Florida International University, and a visiting fellow at the National Security Institute of George Mason University. The opinions expressed in this column are his alone.


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