Only the laws he likes

Under the Constitution, can the president simply refuse to enforce a law he disagrees with? Or because he thinks enforcement might hurt him politically?

The law that President Barack Obama has decided should not be enforced is, ironically, his own employer insurance mandate of the Affordable Care Act (Obamacare), which he has now pushed back to January 2015 for implementation. The full Congress didn’t amend the law along such lines, and the law itself has no provision within it for such a postponement; Obama just ordered it.

It is difficult to find a precedent for this. Presidents can refuse to administer laws that they believe are unconstitutional, but the Supreme Court has already ruled otherwise in National Federation of Independent Business v. Sebelius.

And lest we forget, every president takes the oath of office, with hand upheld, to “preserve, protect and defend the Constitution of the United States.” The Constitution itself also specifically requires, in Article Two, Section Three, that presidents must “take care that the laws be faithfully executed.” A president’s obligations in this regard could not be clearer.

One would think that Democrats and Republicans alike would have a powerful stake in preserving the Constitution and the rule of law it represents. As legal analyst Mario Loyola noted in critiquing Obama’s move, “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 or that the minimum wage will no longer be enforced? What if a future president decides to stop collecting income taxes on his supporters?”

But thus far, outside of a few pundits like Loyola, there has been remarkably little objection to what Obama has done, or concern expressed over the precedent that is being established by his doing so. Alas, the reason for this is found not in law but in politics; more precisely, in the political repercussions for both Democrats and Republicans flowing from postponement of the employer mandate.

For Democrats, the postponement allows them to escape retribution for a highly unpopular law that they passed until safely past the November 2014 midterm elections. Keeping the Senate in Democratic hands was clearly the primary motive behind Obama’s decision.

In short, Democrats aren’t going to object to what Obama has done because they get political benefit from it, defined as short-term relief from the growing political headache known as Obamacare. The delay might be a bit embarrassing in the here and now, and may have unfortunate long term constitutional implications, but the next election is always what matters most.

Yet Republicans are also in something of a bind when it comes to what Obama has done as well.

They have always believed that Obamacare would be a disaster, and remain determined to repeal and replace it with something more to their liking (something more market-based and less statist). Although perhaps disappointed that they won’t be able to use it to beat their Democratic opponents over the head with next year, they can’t easily, in a practical political sense, condemn Obama for delaying a law that they are on record so strongly opposing.

In a nutshell then, the Democrats are going to keep quiet about the constitutionality angle because, in addition to instinctively supporting their man in the White House, they were terrified of Obamacare as an election issue in 2014. Republicans, for their part, can grumble a bit here and there about the rule of law, but they can’t really complain too loudly about Obama postponing implementation of something they’ve claimed will both hurt health care and inflate the budget deficit.

But even if our two political parties have their respective reasons for ignoring their responsibilities in this instance, where have our brave media watchdogs been on all this? Where are the tough (actually, not that tough at all) questions for Obama advisers and Cabinet officials on the Sunday news programs? Why hasn’t the president himself been forcefully pressed on this issue by reporters, particularly given the potential constitutional significance?

That, in the end, is the depressing part-the deafening silence from our “fourth estate” in the face of something that, however you twist and turn it, is undeniably an unconstitutional dereliction of presidential duty.

We are thus left with the conclusion

that constitutional obligations are

easily discarded when it suits the political needs of the moment (for Democrats), or makes it difficult for the “loyal opposition” (Republicans) to explain to an often disinterested and uninformed public the basis of their objections. And also (surprise!) that our mainstream media continues to look the other way whenever looking straight ahead might catch President Obama doing something wrong.

As hard as it might be for committed partisans on both sides to grasp, that archaic concept called the rule of law is ultimately the only anchor we have to tie ourselves to. None of the issues we debate these days ultimately matter a whit unless we preserve it.

So what kind of political system do you have where leaders get to arbitrarily pick and choose which laws to uphold, based on their preferences and political needs? Hint: it starts with a “D,” but isn’t “democratic.” -

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Freelance columnist Bradley R. Gitz, who lives and teaches in Batesville, received his Ph.D. in political science from the University of Illinois.

Editorial, Pages 11 on 07/22/2013

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