What if someone declared a war of check and balances, and only one side showed up? Apparently we would call it the Obama presidency. President Barack Obama’s attempt to “fix” the health insurance cancellation crisis by telling insurers he would not prosecute them for breaking the part of the Affordable Care Act (ACA) that precipitated it is just the latest unopposed annexation of power by this most imperial of presidents.
In February, under instructions from the president, Attorney General Eric Holder announced the government would no longer defend in court or enforce the 1996 Defense of Marriage Act (DOMA). Holder’s letter to House Speaker John Boehner reads like a court decision. Obama essentially struck down the law, declaring it a violation of the Constitution’s Equal Protection clause. In effect, he asserted a veto power the Constitution does not give him. He also exercised powers that belong to the judicial branch, namely the power to rule on the constitutionality of a law and declare it null and void. But constitutionally, the executive branch is simply to “take Care that the Laws be faithfully executed” (Article 2, Section 3).
He showed the same constitutional disregard in how he addressed the employer mandate delay. The ACA requires employers over a certain size to provide their employees with affordable health insurance. When it became clear that the statutory deadline was hopeless to enforce, instead of going to Congress for a legislative fix, Obama simply chose not to enforce that part of the law. He exercised a power the Constitution does not grant him, though presidents have long asked for it: a line item veto. Asked if this was legal for him to do, the president responded, “Where Congress is unwilling to act, I will take whatever administrative steps that I can in order to do right by the American people.” In other words, no.
In this latest “fix” to the ACA, by allowing insurance companies to restore the canceled non-compliant policies, Obama is reversing a rule that his Health and Human Services secretary added to the law after Congress passed it. This rule was designed to drive people with individual policies into the exchanges (precisely the opposite of the president’s pledge). This was not an administrative provision to help properly execute the law as written. It is obvious from the disastrous consequences that it changed the substance of the law.
Now, on top of that, Obama pre-empted an impending legislative remedy with his own notice to insurance companies that he would not prosecute them for restoring policies. But he added conditions to that assurance, essentially writing his own law. In both these cases, the president has assumed legislative powers for the executive branch.
In Federalist Papers No. 47, James Madison wrote, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.” But, frankly, one would think that such an imperial president would have more to show for his efforts.