Opinion Obama’s Hilarious Lawlessness

Rich Lowry is editor of National Review.

President Barack Obama styles himself a wit, and some of his best material lately has to do with his abuse of his powers.

“Middle-class families can’t wait for Republicans in Congress to do stuff,” Obama told a crowd on the Georgetown Waterfront on July 1. “So sue me.” Hilarity ensued.


He cracked them up in Austin last week. “You hear some of them,” he said, referring to Republicans, “‘sue him,’ ‘impeach him.’ Really? Really? For what? You’re going to sue me for doing my job?”

He must have killed in a private meeting last month with activists who were pushing him to waive more immigration laws. According to POLITICO, the president resorted to one his favorite comic riffs: “You’re not going to get me impeached, are you?”

One can only imagine the comedic possibilities in his 9-0 defeat in the Supreme Court in June for his blatantly abusive recess appointments to the National Labor Relations Board or any of the court’s other recent unanimous rebukes of his executive overreach.

It takes a truly blithe spirit to play the constitutional deformation of his office, and the ensuing congressional reaction, for laughs. Lightheartedness aside, if Obama means what he says, he doesn’t understand the nature of his office. It’s not the job of the president to defy the law if it’s inconvenient, or to create new laws in the absence of congressional enactment. Rather, the opposite.

The constitutional injunction that the executive “take care that the Laws be faithfully executed” is not a suggestion. It is a requirement. It is designed to prevent the executive from unilaterally suspending laws, as English kings claimed the right to do. As a constitutional lawyer, the president must be familiar with the seedbed of American liberties, the English Bill of Rights of 1689, which states that “the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.”

The lawsuit against the president undertaken by House Speaker John Boehner targets the serial delay of Obamacare’s employer mandate, just one of a number of seat-of-the-pants delays and alterations in the law. According to the text of the Affordable Care Act, the mandate was supposed to go into effect on Jan. 1, 2014. The administration nonetheless delayed it for an entire year via a Treasury Department blog post in July 2013.

Before his adoring audiences, the president says he has to act because Congress won’t. In this case, Congress was happy to act. In fact, the House passed a bill to delay the mandate until Jan. 1, 2015. President Obama threatened to veto it.

Last February, the administration delayed the mandate yet again. It made a distinction between employers with 50 to 99 workers (the mandate won’t apply to them until 2016) and employers with 100 or more workers (the mandate will apply to them beginning in 2015) that has no basis in the law, and layered on additional rules also created ex nihilo.

All of this is indefensible. Nicholas Bagley, a University of Michigan law professor and Obamacare supporter, wrote in a piece for The New England Journal of Medicine in May that the various ACA delays “appear to exceed the scope of the executive’s traditional enforcement discretion.” Even the forceful liberal pundit Brian Beutler of The New Republic concedes that, if the Boehner suit were to clear (formidable) procedural hurdles, the unilateral delays “would be hard for the Obama administration to defend.”

The left’s reaction to the Boehner suit has been to rip the speaker for, in effect, suing to achieve the complete and expeditious implementation of a law he opposes. It is also pointed out that, even if the suit goes forward and rockets through the courts, there is unlikely to be a resolution before the employer mandate goes into effect anyway. All of this is true, but it suggests that Boehner is trying to vindicate a principle, not achieve a policy outcome.

The principle is rather obvious. As Bagley writes, “the Obama administration’s claim of enforcement discretion, if accepted, would limit Congress’s ability to specify when and under what circumstances its laws should take effect. That circumscription of legislative authority would mark a major shift of constitutional power away from Congress, which makes the laws, and toward the President, who is supposed to enforce them.”

If the next president accepts Obama’s modus operandi, we will witness the effective institutionalization of a chief executive unmoored from the laws. So I sympathize with the impetus behind the Boehner suit, even if I am lukewarm on the suit itself.

The key procedural question is whether Congress has standing to sue the president. The courts have strict rules on standing — there must be a specific injury traceable to unlawful conduct, etc. — that are “founded in concern about the proper — and properly limited — role of the courts in a democratic society,” in the words of the Supreme Court.

Even if Congress can establish standing, it is inviting the courts directly into a political dispute with the executive branch, when the Constitution equips it with its own tools to fight such battles, especially the power of the purse and impeachment. That prudential considerations make wielding those powers problematic in this political environment doesn’t mean that the courts should necessarily be the recourse.

At the end of the day, there’s simply no substitute for a political culture that values lawfulness. The president has damaged it gravely, and evidently had a hell of a lot of fun doing it.