Sunday, July 07, 2013

What is happening to the rule of law?

Since Obama is making a habit of simply not enforcing or waiving or postponing parts of laws that the administration finds wrong or inconvenient, how can we trust him to enforce any law? For example, Conn Carroll wonders what is to stop him from applying this same bait-and-switch policy to whatever immigration bill eventually passes. As George Will writes,
Although the Constitution has no Article VIII, the administration acts as though there is one that reads: “Notwithstanding all that stuff in other articles about how laws are made, if a president finds a law politically inconvenient, he can simply post on the White House Web site a notice saying: Never mind.”

Never mind that the law stipulates 2014 as the year when employers with 50 full-time workers are mandated to offer them health-care coverage or pay fines. Instead, 2015 will be the year. Unless Democrats see a presidential election coming.

This lesson in the Obama administration’s approach to the rule of law is pertinent to the immigration bill, which at last count had 222 instances of a discretionary “may” and 153 of “waive.” Such language means that were the Senate bill to become law, the executive branch would be able to do pretty much as it pleases, even to the point of saying about almost anything: Never mind.
That is the problem once the executive decides that he doesn't have to obey the written text of laws. The Supreme Court settled unanimously in 1975 that a president could not just decide to not spend money that Congress had appropriated for a program he didn't approve of. How is what Obama is doing now so very different? And if he gets away with it, is any law safe from executive actions to evade a law?

It is also the problem when Congress, because it cannot pass a more specific law, simply passes its authority to the executive branch to figure out all the complicated stuff later on.

Nicholas Bagley, a University of Michigan law professor, tries to untangle whether or not there is a truly legal basis for the decision to postpone the employer mandate a year. He concludes that, whether or not the delay is legal, no one will have the standing to bring suit.

And remember, this is not a unique action by the Obama administration - they've been doing this all along for laws they don't like.
This selective enforcement of laws has become an Administration habit. From immigration (the Dream Act by fiat) to easing welfare reform's work requirements to selective waivers for No Child Left Behind, the Obama Administration routinely suspends enforcement of or unilaterally rewrites via regulation the laws it dislikes. Now it is doing it again on health care, without any consultation from, much less the approval of, Congress. President Obama probably figures business and Republicans won't object because they don't like the law anyway.
Even if you agree with Obama and like Obamacare, it has to concern you that one day a president you don't like will act unilaterally to ignore the text of laws that you do like. Obama is setting such a dangerous precedent that should concern anyone who cares about the rule of law. And it should be even more concerning that such actions can be taken and everyone has to just chill because no one has standing to challenge that action. We've already seen the Supreme Court rule this term that no one has standing to support challenges in federal court to an initiative voted on by the majority of a state's electorate. If we now have the precedent that a president can ignore the text of laws and no one can challenge him because no one will have standing to do so, then we might as well kiss good-bye any hope of maintaining a system of checks and balances.