Desperation fuels arrogance as, barely 200 days into the 1,462 days
of his second term, his pantry of excuses for failure is bare, his
domestic agenda is nonexistent and his foreign policy of empty
rhetorical deadlines and redlines is floundering. And at last week's
news conference he offered inconvenience as a justification for
illegality.
Explaining his decision to unilaterally rewrite the Affordable Care
Act, he said: "I didn't simply choose to" ignore the statutory
requirement for beginning in 2014 the employer mandate to provide
employees with healthcare. No, "this was in consultation with
businesses."
He continued: "In a normal political environment, it would have
been easier for me to simply call up the speaker and say, you know what,
this is a tweak that doesn't go to the essence of the law . . . it
looks like there may be some better ways to do this, let's make a
technical change to the law. That would be the normal thing that I would
prefer to do. But we're not in a normal atmosphere around here when it
comes to Obamacare. We did have the executive authority to do so, and we
did so."
Serving as props in the scripted charade of White House news conferences, journalists did not ask the pertinent question: "Where
does the Constitution confer upon presidents the 'executive authority'
to ignore the separation of powers by revising laws?" The question could
have elicited an Obama rarity: Brevity. Because there is no such
authority.
Obama's explanation began with an irrelevancy: He consulted with
businesses before disregarding his constitutional duty to "take care
that the laws be faithfully executed." That duty does not lapse when a
president decides Washington's "political environment" is not "normal."
When was it "normal"? The 1850s? The 1950s? Washington has been the
nation's capital for 213 years; Obama has been here less than nine
years. Even if he understood "normal" political environments here, the
Constitution is not suspended when a president decides the "environment"
is abnormal.
Neither does the Constitution confer on presidents the power to
rewrite laws if they decide the change is a "tweak" not involving the
law's "essence." Anyway, the employer mandate is essential to the ACA.
Twenty-three days before his news conference, the House voted
264-161, with 35 Democrats in the majority, for the rule of law — for,
that is, the Authority for Mandate Delay Act. It would have done
lawfully what Obama did by ukase. He threatened to veto this use of
legislation to alter a law. The White House called it "unnecessary,"
presumably because he has an uncircumscribed "executive authority" to
alter laws.
In a 1977 interview with Richard Nixon, David Frost asked: "So,
what in a sense you're saying is that there are certain situations . . .
where the president can decide that it's in the best interests of the
nation . . . and do something illegal?"
Nixon: "Well, when the president does it, that means that it is not illegal."
Frost: "By definition."
Nixon: "Exactly, exactly."
Nixon's claim, although constitutionally grotesque, was less so
than the claim implicit in Obama's actions regarding the ACA. Nixon's
claim was confined to matters of national security or (he said to Frost)
"a threat to internal peace and order of significant magnitude."
Obama's audacity is more spacious; it encompasses a right to disregard
any portion of any law pertaining to any subject at any time when the
political "environment" is difficult.
Obama should be embarrassed that, by ignoring the legal requirement
concerning the employer mandate, he has validated critics who say the
ACA cannot be implemented as written. What does not embarrass him
is his complicity in effectively rewriting the ACA for the financial
advantage of self-dealing members of Congress and their staffs.
The ACA says members of Congress (annual salaries: $174,000) and
their staffs (thousands making more than $100,000) must participate in
the law's insurance exchanges. It does not say that when this change
goes into effect, the current federal subsidy for this affluent cohort —
up to 75 percent of the premium's cost, perhaps $10,000 for families —
should be unchanged.
When Congress awakened to what it enacted, it panicked: This could
cause a flight of talent, making Congress less wonderful. So Obama
directed the Office of Personnel Management, which has no power
to do this, to authorize for the political class special subsidies
unavailable for less privileged and less affluent citizens.
If the president does it, it's legal? "Exactly, exactly."
