Over at NRO’s Corner, Veronique de Rugy correctly questions whether Obama’s announced “fix” today, where he says insurance companies won’t be required to suspend existing plans, is a change he has the legal authority to make: . . . can he just decide not to enforce the law?
(Howard Dean, along with other Democrats, is asking the same thing, which you can also find on the Corner. I have a feeling quite a few Democrats now will ask similar questions, since Obama’s fix undercuts some of their proposed fix-it bills, such as Senator Landrieu’s.)
No, he cannot do this without violating the Constitution, most specifically, the (Art. II, Sec. 3) “take-care clause”: . . . [The President] shall take Care that the Laws be faithfully executed . . .
What I once described, with a little help from Yuval Levin, as the New Take-Care Clause , the one Obama outrageously continues to act as if it is in the constitution , reads a little differently than that:
. . . [The President] shall take Care that the Laws be faithfully executed, excepting those laws and sections of laws he finds inconvenient, or needing of adjustment . . .
In that piece I showed how Obama’s delay of the employer mandate against the express words of the Obamacare law was a transmutation of executive enforcement power into law-crafting/enacting legislative power, and thus a gross violation of the separation of powers, beyond and above the explicit violation of the take-care clause. And in a post soon after I wondered, alongside Jonathan Turley, why more Democratic representatives weren’t vigorously protesting such.
What I would say to Howard Dean and Mary Landrieu and other Democrats is that it might take more than “awkward questions” and “protests” to stop this pattern of unconstitutional behavior now.
Remember, we’ve got three more years with this fellow. Checks. Balances. Heard of those?
UPDATE: Don’t let the Democrat and MSM focus on various proposed versions of a “legislative fix,” admittedly the hot political story, distract you from the constitutional issue: an administrative fix enacted today by Obama’s speech and by a letter to insurance companies, that allows them to ignore for a year section 1251 of the law. I.e., it’s a change to the law, enacted by presidential authority alone! Jeffery T. Anderson of NRO has the p’s and q’s here .
