In the nation's history, there is simply no precedent for an American president so wantonly ignoring federal law.
Jan. 28, 2014 6:57 p.m. ET
Of all the troubling aspects of the
Obama
presidency, none is more dangerous than the president's
persistent pattern of lawlessness, his willingness to disregard the
written law and instead enforce his own policies via executive fiat. On
Monday, Mr. Obama acted unilaterally to raise the minimum wage paid by
federal contracts, the first of many executive actions the White House
promised would be a theme of his State of the Union address Tuesday
night.
The president's taste for
unilateral action to circumvent Congress should concern every citizen,
regardless of party or ideology. The great 18th-century political
philosopher Montesquieu observed: "There can be no liberty where the
legislative and executive powers are united in the same person, or body
of magistrates." America's Founding Fathers took this warning to heart,
and we should too.
Rule of law doesn't simply mean that
society has laws; dictatorships are often characterized by an abundance
of laws. Rather, rule of law means that we are a nation ruled
by laws, not men. That no one—and especially not the president—is above
the law. For that reason, the U.S. Constitution imposes on every
president the express duty to "take Care that the Laws be faithfully
executed."
Yet rather than honor this
duty, President Obama has openly defied it by repeatedly suspending,
delaying and waiving portions of the laws he is charged to enforce.
When
Mr. Obama disagreed with federal immigration laws, he instructed the
Justice Department to cease enforcing the laws. He did the same thing
with federal welfare law, drug laws and the federal Defense of Marriage
Act.
On many of those policy issues,
reasonable minds can disagree. Mr. Obama may be right that some of those
laws should be changed. But the typical way to voice that policy
disagreement, for the preceding 43 presidents, has been to work with
Congress to change the law. If the president cannot persuade Congress,
then the next step is to take the case to the American people. As
President Reagan put it: "If you can't make them see the light, make
them feel the heat" of electoral accountability.
President
Obama has a different approach. As he said recently, describing his
executive powers: "I've got a pen, and I've got a phone." Under the
Constitution, that is not the way federal law is supposed to work.
The
Obama administration has been so brazen in its attempts to expand
federal power that the Supreme Court has unanimously rejected the
Justice Department's efforts to expand federal power nine times since
January 2012.
There is no example of
lawlessness more egregious than the enforcement—or nonenforcement—of the
president's signature policy, the Affordable Care Act. Mr. Obama has repeatedly declared that "it's the law of the land." Yet he has repeatedly violated ObamaCare's statutory text.
The
law says that businesses with 50 or more full-time employees will face
the employer mandate on Jan. 1, 2014. President Obama changed that,
granting a one-year waiver to employers. How did he do so? Not by going
to Congress to change the text of the law, but through a blog post by an
assistant secretary at Treasury announcing the change.
The law says that only Americans who have access to state-run exchanges will be subject to employer penalties and may obtain ObamaCare
premium subsidies. This was done to entice the states to create
exchanges. But, when 34 states decided not to establish state-run
exchanges, the Obama administration announced that the statutory words
"established by State" would also mean "established by the federal
government."
The law says that members of Congress and their staffs' health coverage must be an ObamaCare
exchange plan, which would prevent them from receiving their current
federal-employee health subsidies, just like millions of Americans who
can't receive such benefits. At the behest of Senate Democrats, the
Obama administration instead granted a special exemption (deeming
"individual" plans to be "group" plans) to members of Congress and their
staffs so they could keep their pre-existing health subsidies.
Most
strikingly, when over five million Americans found their health
insurance plans canceled because ObamaCare made their plans
illegal—despite the president's promise "if you like your plan, you can
keep it"—President Obama simply held a news conference where he told
private insurance companies to disobey the law and issue plans that
ObamaCare regulated out of existence.
In
other words, rather than go to Congress and try to provide relief to
the millions who are hurting because of the "train wreck" of ObamaCare
(as one Senate Democrat put it), the president instructed private
companies to violate the law and said he would in effect give them a
get-out-of-jail-free card—for one year, and one year only. Moreover, in a
move reminiscent of
Lewis Carroll's
looking-glass world, President Obama simultaneously issued a veto
threat if Congress passed legislation doing what he was then ordering.
In
the more than two centuries of our nation's history, there is simply no
precedent for the White House wantonly ignoring federal law and asking
private companies to do the same. As my colleague Democratic Sen.
Tom Harkin
of Iowa asked, "This was the law. How can they change the law?"
Similarly, 11 state attorneys general recently wrote a letter to Health and Human Services Secretary
Kathleen Sebelius
saying that the continuing changes to ObamaCare are "flatly
illegal under federal constitutional and statutory law." The attorneys
general correctly observed that "the only way to fix this problem-ridden
law is to enact changes lawfully: through Congressional action."
In
the past, when Republican presidents abused their power, many
Republicans—and the press—rightly called them to account. Today many in
Congress—and the press—have chosen to give President Obama a pass on his
pattern of lawlessness, perhaps letting partisan loyalty to the man
supersede their fidelity to the law.
But
this should not be a partisan issue. In time, the country will have
another president from another party. For all those who are silent now:
What would they think of a Republican president who announced that he
was going to ignore the law, or unilaterally change the law? Imagine a
future president setting aside environmental laws, or tax laws, or labor
laws, or tort laws with which he or she disagreed.
That
would be wrong—and it is the Obama precedent that is opening the door
for future lawlessness. As Montesquieu knew, an imperial presidency
threatens the liberty of every citizen. Because when a president can
pick and choose which laws to follow and which to ignore, he is no
longer a president.
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