Executive orders aim to prevent ‘Constitution-lock.’

‘That’s the good thing as president,” President Obama half-joked yesterday at Thomas Jefferson’s home in Monticello, Virginia. “I can do what I want.” And, as if signaling that he had finally transcended all of those antediluvian “I’m not a king/emperor/dictator” reassurances, a few hours later the news broke that he had, once again, done what he wanted — this time delaying part of Obamacare’s employer mandate until 2016.

“Now,” ventured the Volokh Conspiracy’s Eugene Kontorovich, “Obama really is bypassing Congress”:

Manipulating large-scale legislative policies, duly enacted, around election schedules goes beyond the parameters of executive discretion. Nor can this be justified by the dubious claim of “transition relief” from tax obligations. The employers are not being relieved just from taxes, but from direct primary legal obligations to provide insurance. Every year the administration delays large portions of ObamaCare, it says it is no big deal, because it is “temporary.” But a few temporary fixes in a row becomes a new permanent form of executive lawmaking.



“Executive lawmaking” sounds so harsh, don’t you think? Perhaps conceive of it instead as the executive branch’s “liberating“ itself from that pesky “Constitution-lock” we’ve heard so much about. After all, the alternative is just too depressing: “Whatever the stated reason for the new delay,” Kontorovich’s colleague at Volokh, Jonathan H. Adler, adjudged candidly, “it is illegal,” and “the increasing brazenness with which the Administration is disregarding inconvenient or ill-conceived portions of its signature legislative achievement lowers the bar to a disturbing degree.” Fair enough. But how rich and how various have been those reasons! “Why do you care: you like the outcome?” the president’s critics have been asked, just one among a host of unconvincing defenses that have included, “well, I don’t like Congress,” “think of it more as that the White House is improving the law,” “this is too important for the rules,” “look, Obama won,” and, perhaps my all-time favorite, “what are you going to do about it anyway?”

In court? Not too much, in all likelihood. As so often, nobody seems to have standing. Legally, though, this isn’t even a close one. Obamcare’s text clearly instructs that the employer mandate is to come into effect on January 1 of this year, and, as Adler adroitly demonstrates, the established rule is that if Congress explicitly enacts a deadline without including the means by which that deadline may be changed, the president is required to enforce the law as written. “The Executive Branch is supposed to faithfully execute the laws Congress enacts, not rewrite them,” Adler concludes — a sentiment that should surprise nobody who has even a rudimentary grasp of American civics. Obamacare contains no exception to that rule.


Still, with his signature legislation on the line and the ghastly prospect of a fully Republican Congress presiding over his final two years, this is all proving a touch restrictive for our intrepid, transforming hero. Thus have we been treated to an intriguing paradox: When Congress wishes to delay or amend Obamacare, it risks upsetting the entire American settlement — nullifying a law that was apparently set in aspic, never to be touched; but when Obama wishes to delay or amend Obamacare, he is merely ensuring that it works properly. Indeed, if Congress so much as hints that it would be willing to pass an alteration to the law, the administration takes it as read that it has been granted the moral permission to act on its own; but if Congress wouldn’t be willing to pass a change, then the president is forced to act in order to counter what we are reliably informed is unprecedented obstruction. It’s awfully clever.


This approach seems to have convinced the press corps, even in such cases as it is patently obvious that the government’s changes have nothing to do with the government and everything to do with politics. Almost every media outlet openly acknowledged yesterday that the newest delay was the product of electoral expedience — “in a midterm election year, the WH simply did not need any more healthcare headaches,” CBS’s Major Garrett averred, his eyebrows remaining level — and yet in not a single case did anybody ask the next question, “how is this remotely acceptable?” Certainly, I comprehend the temptation toward cynicism that the abject hypocrisy of politics can yield. I empathize, too, with those who have come to the resigned conclusion that all legal opinions are driven by partisan preference and that each and every challenge to the process by which things are achieved is ultimately a cloaked objection to the outcome at hand. As conservatives had a poor record of calling out executive overreach when George W. Bush was president, the progressive response to Obama’s accelerating domestic imperialism has thus far been to cheer and ask for more. But are we to conclude that this make it acceptable? Of course not.


“They seem to not understand that it’s not the delay we oppose,” Red Alert’s Allen Ginzburg sighed yesterday, “but the President circumventing the legislature to do it.” Quite so. And they seem not to understand, either, that the system, which is supposed to sit above the politics of the day, is the product not of the last election cycle but of a centuries-old struggle between lawmakers and executives — one that runs through the Magna Carta, the English Civil War, the Glorious Revolution, the American Revolution, the drafting of the Constitution and the consequent fight between the federalists and anti-federalists, a fight that set the stage for the political cleavages with which we still contend today.


In the heat of battle, it might appear to its apologists as if Obamacare is worth the destruction of the established order. But it won’t look that way in a few years time, when, as the pendulum always guarantees that it is, the shoe is on the other foot. George Washington walked away after two terms not because he did not trust himself to rule indefinitely, but because he did not trust the guy twenty or thirty years down the line to do so. Obama would do well to follow Washington’s example. He doesn’t even need the permission of Congress . . .

— Charles C. W. Cooke is a staff writer at National Review.