Some of you may recall a little law known as the Patient Protection and Affordable Care Act that went into effect a short while ago. One of the odd aspects of the law is that President Obama has made many changes to it, and has done so without consulting Congress. Obama has delayed the mandate that employers either provide insurance for employees or pay a fine by a year. He’s allowed certain insurance plans which supposedly couldn’t be legally sold to be sold anyway for another year. He’s allowed some of the people who don’t have insurance to ignore the individual mandate and not get fined this year. And so forth. It’s unclear whether these changes are legal, and lawsuits seeking to overturn some of them are in progress.
Now anyone who’s passed a 9th grade civics class knows we have three branches of the federal government. The legislative branch makes laws, the judicial branch interprets laws, and the executive branch enforces laws. That’s the theory, at least. President Obama can’t simply create a new law without going through Congress, but he’s apparently decided that once a law is passed, it’s okay to selectively enforce it. In cases such as delaying the employer mandate, what he’s officially doing is saying that he won’t enforce that part of the ACA, even though it is a law and is still in effect.
So if Obama is allowed to do this sort of thing, what sort of precedent does that create? Let’s consider a hypothetical scenario: it’s January 21, 2017, and the newly elected President, Phineas Glump, has just entered office. Could President Glump simply declare that he won’t bother enforcing the entire ACA, effectively nullifying it? Could he nullify other laws in the same manner? Has this ever been an issue before?
Many laws give the administrative agencies involved considerable discretion on how to implement the details. I haven’t read the ACA, but I would expect the President isn’t “not enforcing” so much as fine tuning per the law.
a. Haven’t we already had a thread about this? Don’t you have any other dead horses you can beat?
b. There seems to be some cognitive dissonance here. Conservatives bitch and moan about the implementation of a law and then howl like whipped dogs when the Executive branch does something about their complaints. I don’t think you can have it both ways. You either have to blame Congress for the faults in the ACA or you have to let the Executive branch patch it up as best as possible using its discretionary ability.
Worse, conservatives complain when a Democrat uses “Executive Orders” to govern, but don’t complain when a Republican does it. George W. Bush was far more activist in this way than Obama has been, and conservatives wanted to grant him more power, under the philosophy of the “Unitary Executive.”
(A doctrine that dropped dead the day after Obama’s first election.)
The answer to the OP is: sort of. A conservative president could do a lot to undermine the ACA. He could direct the IRS not to enforce the sanctions; he could direct the Dept. of HHS to stop administrating it.
Conservative Presidents have done this, at the EPA: they’ve gutted EPA expenses, refused to renew personnel shortages, and ordered limited interpretation and enforcement of the laws.
Presidents have a lot of power. The only disciplinary action against them that makes a real difference is impeachment. (Unless they have a veto-proof majority, in which case they can have fun like cutting the White House office budget, removing Secret Service protection, etc. etc.)
Could President Ron Paul eliminate the tax revenue and abolish the Fed ? Choosing to run the country without federal income ?
Could President Isolationist recall all U.S. forces and stack the minimal troops left needed around the perimeter ? Festung Amerika.
Could President-for-life Gonzo round up all poor people and force them to work on building Gonzoland, a massive pleasure palace 150 miles wide and 2 miles high, where forever the wealthy could dignifiedly frolic and indulge in illegal substances — the Ninth Wonder of the World ?
Ah the idle reveries of plutocracy: how sweet they are…
I think it’s an interesting question, at least to someone without any constitutional expertise like me. I’m assuming there is an answer, that there are somewhat clear boundaries to the president’s discretion in installing law. What are those boundaries? Depending upon which talking head I’m listening to, he has either already crossed it or he’s not even close.
There was similar noise regarding the alleged de facto installation of the Dream Act by executive fiat. That seemed pretty clearly to me (again, not an expert!) to be the president executing the law as he wished it existed, not as it was, and his “discretion” seemed clearly shaped around political objectives, not the sorts of practical ones that I assumed permitted such things.
Could a president direct the IRS to stop enforcing capital gains taxes, as a better use of the IRS’s “limited resources”? I’d be interested in our constitutional scholars providing some education (Bricker? Richard Parker?). Which talking head is “righter”?
The President can choose not to enforce whatever he wants. What he can’t avoid doing is spending money. That issue was settled when Nixon tried to impound funds Congress appropriated. So the subsidies and the Medicaid expansion would still go on.
But yet, the President could definitely stop enforcement of the individual mandate, the employer mandate, and the required coverage, such as the contraception mandate. The current President already did just that in all three cases, either delaying enforcement completely(the employer mandate), or granting exemptions in the other two cases. All a future President has to do is write the exemption regulations such that nearly everyone is exempt.
Given the IRS’s limited means, I imagine a President can focus their enforcement wherever he wants: Maybe have them stop bothering with capital gains and go after waiters not reporting tips.
Precedents matter too. If the current President suspends enforcement of any ACA tax, then that establishes that a President can suspend tax enforcement in general. ACA is not special because it’s Obama’s pet project. If he was to say, suspend the individual mandate tax, then that opens the Pandora’s Box.
The language used in the PPACA places a lot of the authority in the Secretary of Health and Human Services. A new president with a new Secretary of HHS could gut the minimal essential coverage requirements to such an extent that any coverage, or possibly having no coverage at all, would be compliant with the PPACA. From there the law collapses.
As I recall the gist of the consensus that arose from that thread – to the extent that consensus is ever a reality here – was that Obama’s extra-legal tweaks of Obamacare were acceptable, because his ultimate intent was to save the law, to make it work. A future President who made tweaks of similar dimension would be unacceptable if the intent of those tweaks was to eviscerate the law.
I found that a remarkably unworkable standard, but I think the disagreement goes to the heart of how liberals and conservatives view the proper role of government, and the proper framework of analysis of the exercise of government power. I think the rules are paramount. The liberal view is less about the rules and more about the results…if a desirable result is reached, it’s fine to interpret the rules differently today than we did yesterday. This is why you see liberals falling all over each other in the “Nuns vs. Obama,” thread professing their undying fealty to the law, and steadfastly excoriating the nuns for their unwillingness to follow the law…and without the slightest sense of irony taking the opposite position in the “Voter ID,” threads.
Naturally I phrase that to make the liberal side seem inconsistent, but it actually isn’t as inconsistent as I try to paint it: the underlying, real position in each case has nothing to do with the law. The correct result in Case A (for the liberals) is that the nuns should pay for contraception insurance, so the correct framework is to support the law that says so. And the correct result in Case B is to eliminate strict Voter ID, so the correct framework is to NOT focus on the law, but on concepts like justice and empathy and fairness, and argue that those concepts are what should control.
Bricker: I’m not seeing the hypocrisy. “Liberals” are saying the ACA is a good law, and so it should be kept. Voter ID laws are bad, and should be repealed. Everyone thinks “bad” laws should be repealed, no?
That seems too unstructured for my taste. Oh, well. Who or what determines if the tweaks rise to the level of eviscerating the law? Is there a mechanism enshrined in the Constitution that provides a check on this executive power?
John, I might be misunderstanding your point. We all want to repeal bad laws, but the question is if that “effective repeal” can be accomplished legitimately through the Executive branch. ISTM the answer to that must be no, and that would be my reaction even if it served a cause I like. I assumed that the president’s discretion did not extend to shaping the law into the one he’d prefer it was. That’s wrong, in the same way a line item veto would be–the president doesn’t make law, and picking and choosing the portions of laws he likes is tantamount to creating a new law.
The difference is that the ACA is serving a reasonable policy goal and the changes are to further that goal. Also, I haven’t seen specific evidence that the changes are “extra legal”. If the president is committing crimes, is it the liberal media that is keeping this under wraps?
I assume most “Liberals” (as you snarlingly use the term), think voter ID laws should be struck down, since they serve no public good. Voter ID, as enacted by the GOP recently, only makes it harder for legitimate voters to cast ballots, and does next to nothing to stop in-person voter fraud.
The goal of ACA, ISTM, is exactly the effect it produces when it’s fully installed. Period. For example, two of the goals are to collect the corporate mandate and to eliminate certain types of coverage in the individual insurance market if not properly grandfathered (because, as we’ve been told countless times, such coverage is “substandard”). Why does Obama get to suspend these “goals” of ACA, since Congress considered them important enough to include?
It does not suggest to me that they can do whatever they want, no. Is there something in the law that confers that power? Maybe there is. I certainly haven’t read that bazillion page horror.
But the cancelled individual contracts aspect is a great case in point for this discussion if such a power for HHS doesn’t exist. The cancelled contracts were not some unintended outcome. It was not some aspect of the law that hit an insurmountable (at the moment) obstacle that required some temporary plan B. That aspect of the law was unfolding exactly as it was written. If Obama had not lifted a finger, it would have produced EXACTLY the effect the legislature wrote in the law. Why in the world would the Executive branch get to suspend that, in defiance of the legislature? Obviously he suspended it for political reasons. Doesn’t that seem like an overreach for the Executive branch?
