July 15, 2013 by sasoc
Here is an article by David Rivkin and Lee Casey that was pure joy to read (Why the President’s Obamacare Maneuver may Backfire). It addresses Barack Obama’s unconstitutional habit of ignoring parts of Federal law that he doesn’t like and suggests that with his recent decision to selectively waive Obamacare penalties for businesses he may have finally tripped himself up.
First they lay out the constitutional principle on which Obama has shit upon again and again:
President Obama’s announcement on July 2 that he is suspending the Affordable Care Act’s employer health-insurance mandate may well have exposed his actions to judicial review—even though that is clearly what he sought to avoid. The health-care reform law’s employer mandate requires businesses with more than 50 employees to provide a congressionally prescribed set of health-insurance benefits or pay a penalty calculated at about $2,000 per employee. The law was to take effect on Jan. 1, 2014, but Mr. Obama has “postponed” its application until 2015. His aim, the administration said, was to give employers more time to comply with the new rules. But it was also seen as a way to avoid paying at least part of ObamaCare’s mounting political price in the 2014 congressional elections.
Whatever the reason, the president does not have the power to stop the implementation of a law. If there is one bedrock constitutional legal principle, it is that the president must “faithfully execute” federal statutes. He cannot suspend laws he dislikes on policy grounds or because he fears their political consequences.
Then they list some of his worst offenses in this area, which we all know are designed to force his agenda on the American people in ways that the Founders would have never allowed:
Mr. Obama, however, has made a habit of exercising an unlawful suspending power, refusing to enforce selected federal laws, including various provisions of the immigration laws against young, undocumented aliens; work requirements enacted as part of the 1996 federal welfare reform law; and the testing accountability provisions of the No Child Left Behind education law.
The phrase “made a habit” is so civilized — almost friendly — when describing the willful actions of a man who clearly hates the United States and seeks to weaken and destroy it. You may be wondering at this point, as I was, about how mr. Obama has gotten away with this “bad habit”, because American checks and balances would result in Judicial action against the president. Rivkin and Casey provide a solid legal explanation for us:
One key problem with suspension power—aside from the fact that it destroys the balance of power between the two political branches—is that, when skillfully exercised, it sidelines the judiciary. The Constitution requires that a party commencing litigation must have what is commonly called “standing,” i.e., the party must have suffered or will suffer a legal injury that a court can redress. A determined president can head off litigation by effectively rewriting federal statutes in ways that do not create individual injuries so no party has standing.
What they mean is that, for example, when the Manchurian suspended part of the immigration laws to protect illegal aliens, there were (seemingly) no injured Americans who could claim that they were harmed by this action and therefore bring suit against the imperial president. I could argue (as I have many times) that we citizens are injured again and again by illegal immigration and by Barack Obama’s unilateral suspension of enforcement against young illegals, but you can see Rivkin and Casey’s point that there is no obvious class of litigants who could band together to claim individual injuries.
But this time may be different:
By suspending the Affordable Care Act’s employer insurance mandate, however, the president has potentially given millions of Americans the necessary standing to challenge his conduct. This is because the Affordable Care Act is a highly integrated law, with many of its key provisions dependent on each other. In addition to the employer mandate, the law also contains an “individual mandate,” requiring most Americans to sign up for a required level of health-insurance coverage or pay a penalty.
You can see why I love this article: it is well-reasoned, showcases Obama’s unAmerican “bad habit”, and spells the possible unraveling of Obamacare in its entirety, praise god.
Once in court, these litigants can argue that the very integrated nature of the Affordable Care Act would make it unlawful to apply one part against them, while suspending another section. They can also argue that only Congress can determine whether, once a statute is fundamentally changed post-enactment, it should survive or fall.
And then Rivkin and Lee’s powerful finish:
This argument should find favor with judges who are weary of the use of suspension power that improperly aggrandizes presidential authority, diminishes congressional power, and denies the judiciary an opportunity to have its say. Courts would have to conclude that the whole statute must fall while the president’s suspension is in effect. While reaching this conclusion, they might also declare the suspension itself unconstitutional. Both results would mark a significant win for the American people.
Now, if all this comes to pass, Barack Hussein Obama might simply cancel the suspension and hit employers with the original baseball bat to the face. But if he does this he will face the political backlash in the midterm elections that he sought to avoid in the first place when he issued, via Valerie Jarrett, the suspension for employers.
Voters will be going to the ballot boxes in November 2014 with the taste of Obamacare fascism well in their mouths and it may well cost the Democrats the Senate.
So either way the American people win: the courts weaken and destroy Obamacare, or Obama is forced to pay at the ballot box for the cruel effects of his health care law.