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The people of America in the late 18th century rebelled against the king
of England usurping the powers of the British Parliament and what they considered to be their rights
under British law. Today, in the 21st century, the leader of this country is perpetrating the same
violations of our basic rights which are guaranteed to us by our Constitution. President Obama is
violating the Constitution by arbitrarily deciding which laws enacted by Congress to enforce and
which to ignore.
“Everyone should know from their high-school government classes that
Article I of the Constitution gives Congress exclusive power to make federal laws, and Article
II of the Constitution gives the American president the executive power to administer and enforce
those laws. Article II then includes the language about how the president must faithfully execute
those laws.
“Among other things, the Take Care Clause was inserted in the Constitution to
abolish the Royal Prerogative that the Framers of the American Constitution knew from their lives as
Englishmen. It was the power of the king of England to disregard or effectively suspend Acts of
Parliament. The king could not make laws, but he could shelve a law that Parliament had passed.”
(Ref. 1)
President Obama’s claim that he has the authority to ignore portions of
legislation enacted into law is a frightening claim of a sweeping power that is completely
inconsistent with the Constitution. A president has “prosecutorial discretion” to prioritize
which lawbreakers to prosecute in federal court, but there is no “enforcement discretion” to
determine which laws on the books he will enforce.
Most recently, when it became clear that the Affordable Care Act (ACA), or
Obamacare, as it is commonly known, could not be implemented as written, President Obama unilaterally
decided not to enforce the provisions of the law. This amounts to selective non-enforcement of a
law enacted by Congress and even signed into law by the president himself. President Obama had
previously rejected a Republican proposal to delay implementation of Obamacare for a year, which
could have been done within the rules established by our Constitution by having Congress amend the
law and then having the president sign the amendment. Instead, he abrogated the power of Congress,
a right never granted to the Executive Branch by the Constitution!
The American Constitution is clear in its separation of powers. Congress
makes the laws and the President administers, enforces and executes the laws. The Constitution
nowhere gives the president the right to ignore a law enacted by Congress.
“To contend that the obligation imposed on the president to see the
laws faithfully executed implies a power to forbid their execution is a novel construction of the
constitution, and is entirely inadmissible.”
- U.S. Supreme Court, 1838
“But even before he decreed alterations of key ACA provisions –
delaying enforcement of certain requirements for health insurance and enforcement of employers’
coverage obligations – {President Obama} had effectively altered congressionally mandated policy
by altering work requirements of the 1996 welfare reform; and compliance requirements of the No
Child Left Behind education law; and some enforcement concerning marijuana possession; and the
prosecution of drug crimes entailing mandatory minimum sentences; and the enforcement of immigration
laws pertaining to some young people. [Emphasis mine]
(Ref. 2)
In taking these actions, President Obama has arguably violated the
Constitution of the United States. “The Constitution’s ‘text, history, and normative underpinnings’
do not justify the permissive reading Obama gives to the Take Care Clause, which says the president
‘shall take care that the laws be faithfully executed’ {Article II, Section 3 of the U.S.
Constitution}.
“It is . . . part of America’s ‘deeply rooted constitutional tradition’
that ‘presidents, unlike English kings, lack authority to suspend statutes’ or make them inapplicable
to certain individuals or groups. Indeed, the Take Care Clause may have been intended to codify
the Framers repudiation of royal suspending prerogatives. Hence the absence of an anti-suspension
provision in the Bill of Rights.” (Ref. 2)
Allowing a president to decide which laws or portions of laws enacted by
Congress he will enforce or ignore is fraught with inordinate danger. “If President Obama may
postpone enforcement of the ACA’s insurance requirements and employer mandate, could a subsequent
president ignore the Affordable Care Act altogether?
“In 1998, the Supreme Court held that ‘there is no provision in the
Constitution that authorizes the president to enact, to amend, or to repeal statutes.’ But by
claiming a power to revise laws through suspension of portions of them, Obama is exercising . . . a
‘second veto.’” (Ref. 2)
Is the President breaking the laws of the United States? Perhaps. What
may be more obvious is the fact that the President’s administration urged private companies to
break the law when the Health and Human Services secretary “announced that she was ‘urging’ insurers
to ignore both their contracts and the law and simply cover people on the honor system – as if they
were enrolled and paid up. . . . Of course, urging isn’t enforcing. But . . . the difference is
subtle. . . . HHS announced it will consider compliance with its suggestions when
determining which plans to allow on the exchange next year. [Emphasis mine] A request
from HHS is like being asked a ‘favor’ by the Godfather. Compliance is less than voluntary.” (
Ref. 3)
Congress may be finally waking up to the fact that many of the President’s
actions may be unconstitutional, illegal and a gross usurpation of Congress’s authority as guaranteed
by the Constitution. In late 2013, the House Judiciary Committee decided to look into “The President’s
Constitutional Duty to Faithfully Execute the Laws” and determine just how much latitude the nation’s
chief executive has to ignore laws passed by Congress. Members of Congress have accused the President
of circumventing the nation’s laws with which he disagrees. The hearings were to focus on Obamacare
and on Obama’s alleged “decision to ignore enforcement of our immigration and federal drug laws.”
“President Obama has blatantly disregarded the Constitution’s mandate to
faithfully execute the laws,” said the Judiciary Committee Chairman, “He has changed key provisions
in Obamacare without congressional approval, failed to enforce our immigration and drug laws,
and ignored his constitutional duties for the sake of politics. It is apparent that the
president’s vested interest is not in the protected liberties of the American people, but
in the advancement of his own agenda and interests.”
(Ref. 4)
The questions that needs to be asked and answered is: “Where does the
Constitution confer upon presidents the ‘executive authority’ to ignore the separation of powers
by revising laws or by disregarding his constitutional duty to “take care that the laws be
faithfully executed.”? In reality, the answer to this question exists, it’s: “There is
no such authority!” The president’s duty to uphold the Constitution does not lapse
simply when a president decides Washington’s “political environment” is not “normal.” Despite
President Obama’s claim to the contrary, the Constitution is not suspended when a president
decides the “environment” is abnormal. In addition, the Constitution does not
confer on presidents the power to rewrite laws if they decide the change is a “tweak” not
involving the law’s “essence.”[Ref. 5]
In summary, President Obama and his administration would
appear to be violating the Constitution of the United States, standing in contempt of the
rulings of the United States Supreme Court and usurping the constitutionally granted powers
of the Congress of the United States. We fought the American Revolution because of
similar actions taken by an English potentate.
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References:
- Obama takes presidential discretion to extremes, George F. Will, Boston Herald,
Page 23, 19 December 2013.
- Health insurers lack a backbone, Jonah Goldberg, Boston Herald, Page 23,
19 December 2013.
- Obama’s unconstitutional steps worse than Nixon’s, Geoge F. Will,
The Washington Post, 14 August 2013.
- House Judiciary Sets Hearings On Obama Acting Unconstitutionally, Laura Matthews,
International Business Times, 3 December 2013.
- OBAMA'S INSURANCE 'FIX' IS UNCONSTITUTIONAL, Ken Klukowski, BREIBART,
14 November 2013.
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