President Barack Obama's decision last week to postpone the employer mandate of the Affordable Care Act represents an unjustified use of executive power, says Michael McConnell, a former U.S. Circuit Court of Appeals judge.
The decision "may be welcome relief to businesses affected by this provision, but it raises grave concerns about his [Obama's] understanding of the role of the executive in our system of government," McConnell writes in The Wall Street Journal
The mandate requires businesses with more than 50 employees to provide health insurance or pay penalties.
The president is essentially disobeying Article II, Section 3 of the Constitution, which says the president "shall take Care that the Laws be faithfully executed," according to McConnell, now director of Stanford Law School's Constitutional Law Center.
"This is a duty, not a discretionary power," he states. "While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so."
The Justice Department's Office of Legal Counsel has repeatedly maintained that the president can refuse to enforce laws he believes are unconstitutional. But it has made clear, as one memo put it in 1990, that the president can't "refuse to enforce a statute he opposes for policy reasons," McConnell says.
"The employer mandate in the Affordable Care Act contains no provision allowing the president to suspend, delay or repeal it," he says. "Imagine the outcry if Mitt Romney had been elected president and simply refused to enforce the whole of Obamacare."
Obama is a repeat offender, McConnell says.
"This is not the first time Mr. Obama has suspended the operation of statutes by executive decree, but it is the most barefaced," he writes.
He cites as an example the administration's decision last June to stop deporting more than 800,000 illegal immigrants who met certain criteria.
That came after Congress rejected the Dream Act, which would have allowed the immigrants to stay in accordance with those conditions, McConnell says.
Also last year, he says "the president effectively replaced congressional requirements governing state compliance under the No Child Left Behind Act with new ones crafted by his administration."
Some Republican opponents of Obamacare may support the mandate delay, because postponement "is such good policy that there's no need to worry about constitutionality," McConnell continues. "But if the president can dispense with laws, and parts of laws, when he disagrees with them, the implications for constitutional government are dire."
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