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Former Appellate Judge Says Obama’s Actions Unconstitutional

Posted by Steve Markowitz on July 13, 2013

Just before the July 4th Holiday, when real news can be buried, the Obama Administration announced that it would delay for one year the employer mandate of the Affordable Care Act (Obamacare).  Reactions differed depending on parochial interests.  Businesses that were spared Obamacare’s additional costs welcomed the delay.  Republicans attempted to take political advantage and Democrats claimed the action proves Obama’s flexibility and willingness to work with businesses.  None of these reactions address the real issues under Obamacare or the President’s actions.

Obamacare is doomed to fail because of bad economics.  The President claimed that Obamacare would add tens of millions to the roles of those with healthcare insurance, but would not result in increased costs.  This ludicrous claim is akin to alchemy or stupidity.  Economic reality is now being recognized by the Administration and that is what is behind the hundreds of waivers and the recent delay in Obamacare implementation.

There is a more disturbing element behind Obama’s delay implementing major part of the Affordable Health Care Act.  The President has shown a callous attitude towards the Constitution.  It is questionable whether Obama has the authority to unilaterally not implement signed laws passed by Congress.  Michael McConnell, a former US Appeals Court judge for the 10th Circuit and now director of the Constitutional Law Center at Stanford Law School, recently posted an op-ed in the Wall Street Journal which concludes:

“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.”

“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 Justice Department’s Office of Legal Counsel, which advises the president on legal and constitutional issues, has repeatedly opined that the president may decline to enforce laws he believes are unconstitutional.  But these opinions have always insisted that the president has no authority, as one such memo put it in 1990, to “refuse to enforce a statute he opposes for policy reasons.””

“In 1998, the Supreme Court struck down a congressional grant of line-item veto authority to the president to cancel spending items in appropriations.  The reason?  The only constitutional power the president has to suspend or repeal statutes is to veto a bill or propose new legislation.  Writing for the court in Clinton v. City of New York, Justice John Paul Stevens noted: “There is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes.””

“Of all the stretches of executive power Americans have seen in the past few years, the president’s unilateral suspension of statutes may have the most disturbing long-term effects.  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.””  Read full article.


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