How Barack Obama Has Defeated His Own Signature Legislation
Our prior post predicting the judgment of the Supreme Court that Obamacare was unconstitutional was accurate. Its conclusion that the pride of the President and his Congressional enablers was what spelled the end of Obamacare while not true with regard to the Court’s surprise ruling is nevertheless true. (Whether the Court’s ruling upholding the legislation based on a power that Congress expressly avoided invoking is good jurisprudence merits an entirely separate post.) How is that so? The current president, like no other in history, has made Alexander Hamilton’s words strikingly clear:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
Federalist Papers, No. 78. This President, through his affirmative decision to decline enforcement of DOMA and his decision to decline to enforce certain aspects of our immigration laws and make up new rules by executive fiat, has shown that the Executive alone holds the sword of the community by which he enforces the laws and judgments of the nation. He has shown this by his decision to withhold the sword. His conduct, which might be grounds for impeachment, has established a dangerously powerful precedent, to wit, that the Executive, until forced from office, is within his authority to selectively enforce the nation’s laws, even ones of broad application. When I say “within his authority” I mean nothing other than that there is no other executive power which can contend with that of the National Government, and so such authority whether exercised licitly or illicitly is effective until removal of the President by impeachment or election.
What could a succeeding president who rejects Obamacare do? Follow the precedent set by the president whose name is forever associated with the legislation: decline to enforce Obamacare. As justification, such a president could cite to his view that Obamacare represents poor policy for the United States, much like the current President has determined that DOMA and immigration rules are poor policy. Associated acts would be to order the Departments of Health and Human Services and Treasury to leave the law moribund, to devote no staffing resources to administering the law and take no administrative enforcement actions. (One might justify this decision on the basis of the mind-numbing volume of rules and regulations that apparently need to be issued: http://hotair.com/archives/2012/07/05/offcials-have-already-drafted-13000-pages-of-rules-regs-for-health-care-law/.) Such a president would also instruct his Attorney General to make it clear that no judicial enforcement actions will be taken. In short, while Obamacare would be a law, it would have no force while such a president was in office.