To date, there have been 37 changes made to the Affordable Care Act (aka ObamaCare). It shouldn’t come as a surprise that a law that affects 1/7th of the nation’s economy, that consists of 381,517 words, and that has spawned over 11 million words worth of regulations has needed some adjustments, fixes, tweaks. The interesting element of these changes is how they’ve been enacted.
In our system of government, laws are passed by the Congress, which consists of two houses, and signed by the President, who has the right to veto laws subject to being overridden by the Congress. However, none of the 37 changes effected to ObamaCare since its passage involved Congressional action. There were no votes taken in either the House or the Senate regarding those changes. Instead, the changes were effected by the executive branch at the order of the President. The source of authority for the President’s actions is, well, vague, to put it mildly, and those who defend his right to make these changes will likely claim that, as chief executive, he’s tasked with implementing the law.
Article II Section 3 of the Constitution states that the President:
shall take Care that the Laws be faithfully executed.
The meaning and scope of “faithfully” is, of course, the crux of this statement, and the interpretation is subject to some debate. But I defy anyone who’s not blindly partisan to conclude that “faithfully” can be reconciled with year-plus delays in implementation, with exceptions for some, and with selective enforcement.
Rather than go into a long legal history and analysis of the Take Care clause, as it’s commonly referred to, lets consider the precedent that Obama’s unchecked and unchallenged changes to the implementation of ObamaCare represents. While some of the changes will certainly fall within the range of permissibility established by Obama’s predecessors, others do not.
In 2008, Obama stated:
The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all. And that’s what I intend to reverse when I’m president of the United States of America.
Yet we are now witnessing Obama expanding the power of the executive branch in new ways. He is, in effect, declaring that he can rewrite parts of laws without going through Congress. And, make no mistake, rewriting law is exactly what he is doing when he delays implementation of mandates and pushes deadlines back.
Lest we think this is the first time Obama has played fast and loose with the law, lets roll the clock back to 2008 and the Troubled Asset Relief Program (TARP). TARP was intended to be used for financial institutions, and from what I read specifically excluded automakers. Tens of billions of TARP dollars were used by Obama for the GM and Chrysler bailouts. Some questioned what legal authority he had to do so, but they were pretty much ignored. Further examples abound, especially in his use of executive orders to effect actions that Congress never authorized.
His champions and apologists claim he has no choice but to act as he has, given the obstructionism of the Republican majority in the house. But there isn’t any language in the Constitution that empowers a President to bypass the Congress if he feels the Congress isn’t cooperating sufficiently. The Presidency does not stand atop Congress, it is one of three branches of government, each with unique powers and duties. To usurp Congress’s role as sole writer of law is to dangerously skew the balance of powers.
This skewing of the balance, this accrual of power in the executive branch, this assumption of legislative authority by the President won’t end on January 20, 2017, when Obama steps down. The next president, and the next, and the next, will have precedent by which to justify the rewriting of laws they don’t care for. Barring some substantial legislative (possibly even constitutional) action, we will forever after be dependent on the individual restraint and good will of whoever is President, rather than on the rule of law, in the implementation of legislation enacted by Congress. Obama certainly believes that reforming the nation’s health care system will be what he is remembered and revered for, that ACA will be his legacy. Many think, myself included, that ACA is unfixable and thus doomed to fail. Something will replace it, and that something
Obama’s legacy will not be ACA. He may forever be remembered as the President who broke the health care system, and may get credit/blame as the instigator of whatever follows. His real legacy will be the dramatic expansion of the power of the presidency. It’s rather ironic that he, a constitutional law professor, will forever be known for something utterly contrary to the basic purpose of the Constitution, something he promised to reverse.
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