Tuesday, July 9, 2013
Writing in the Wall Street Journal, Michael McConnell, a friend to many of us at MOJ, writes:
President Obama's decision last week to suspend the
employer mandate of the Affordable Care Act may be welcome relief to businesses
affected by this provision, but it raises grave concerns about his understanding
of the role of the executive in our system of government.
Article II, Section 3, of the Constitution states that
the president "shall take Care that the Laws be faithfully executed." This is a
duty, not a discretionary power. While the president does have substantial
discretion about how to enforce a law, he has no discretion about
whether to do so.
This matter—the limits of executive power—has deep
historical roots. During the period of royal absolutism, English monarchs
asserted a right to dispense with parliamentary statutes they disliked. King
James II's use of the prerogative was a key grievance that lead to the Glorious
Revolution of 1688. The very first provision of the English Bill of Rights of
1689—the most important precursor to the U.S. Constitution—declared that "the
pretended power of suspending of laws, or the execution of laws, by regal
authority, without consent of parliament, is illegal."
The employer mandate in the Affordable Care Act contains
no provision allowing the president to suspend, delay or repeal it. Section
1513(d) states in no uncertain terms that "The amendments made by this section
shall apply to months beginning after December 31, 2013." Imagine the outcry if
Mitt Romney had been elected president and simply refused to enforce the whole
This is not the first time Mr. Obama has suspended the
operation of statutes by executive decree, but it is the most barefaced....
As the Supreme Court said long ago (Kendall v. United States, 1838),
allowing the president to refuse to enforce statutes passed by Congress "would
be clothing the president with a power to control the legislation of congress,
and paralyze the administration of justice."