The Lawless President


ACRU Staff


July 10, 2013

This column by ACRU General Counsel and Senior Fellow for the Carleson Center for Welfare Reform (CCWR) Peter Ferrara was published July 10, 2013 on The American Spectator website.

The duties of the President of the United States are spelled out in Article II, Section 3 of the Constitution, which states, inter alia, that the President “shall take Care that the laws be faithfully executed.” As Stanford Law Professor and former federal judge Michael McConnell explained in yesterday’s Wall Street Journal, “This is a duty, not a discretionary power. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.”

Section 1513(d) of the Unaffordable Care Act (aka “Obamacare”) states unequivocally, “The amendments made by this section shall apply to months beginning after December 31, 2013.” In other words, the provisions of Obamacare become fully effective in 2014, as a matter of duly enacted federal law.

But over the long Fourth of July weekend, in a “Never Mind” moment, the Obama Administration announced, through a Deputy Assistant Secretary of the Treasury, that contrary to federal law, the employer mandate of Obamacare shall not become fully effective in months beginning after December 31, 2013, but only in months beginning after December 31, 2014. Making the announcement through such a low level Administration official to me says that Obama has contempt for the American people, and for the rule of law.

Barack Obama: Lawbreaker

But it does not matter who announces it. The President is the one responsible. And the announcement constitutes the assumption of authoritarian powers by President Obama.

McConnell explained the history behind Article II, Section 3 of the Constitution:

During the period of royal absolutism, English monarchs asserted a right to dispense with parliamentary statutes they disliked. King James II’s use of the prerogative was a key grievance that led to the Glorious Revolution of 1688. The very first provision of the English Bill of Rights of 1689—the most important precursor to the U.S. Constitution—declared that “the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament is illegal.

McConnell further explained the modern manifestation of this legal history. Official, governing opinions of the Office of Legal Counsel of the U.S. Justice Department state that the President has the power to decline to enforce laws he believes are unconstitutional. “But these opinions have always insisted that the President has no authority…to ‘refuse to enforce a statute he opposes for policy reasons.'” Which includes as well suspending a statute temporarily for political reasons.

The U.S. Supreme Court has backed up these opinions. In 1998, in Clinton v. City of New York, the Court struck down a duly enacted statute passed by Congress that granted line item veto authority to the President to strike out spending items he opposed in Appropriations bills. McConnell explained the reason for the ruling: “The only constitutional power the president has to suspend or repeal statutes is to veto a bill or propose new legislation.” Liberal Justice John Paul Stevens wrote for the Court in Clinton, “There is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes.”

You see now why maybe the announcement was made by a Deputy Assistant Secretary of the Treasury?

Obamacare Chaos

The Obamacare employer mandate was already causing chaos in the jobs market, as reflected in last Friday’s jobs report for June. Irresponsible “mainstream” media frauds were cheerleading the reported 195,000 new jobs reported for last month. But they failed to report the full story, which falls to us to report here.

In the 11 previous recessions since the Great Depression, the economy recovered all jobs lost during the recession an average of 25 months after the recession began. But today, 67 months after the last recession began, the economy under President Obama still has not recovered all the jobs lost during the last recession, which officially ended four years ago. At this same point in President Reagan’s recovery, jobs had soared almost 10 percent higher than when the recession started, which meant a net increase of more than 10 million jobs.

Moreover, all of the net new jobs created last month were part time! Full time jobs actually declined last month by 240,000. As Investor’s Business Daily reported in its Monday edition, “Year to date, only 130,000 full time jobs have been added to our economy. The rest of the jobs—557,000—have been part-time.” As a result, the Labor Department reported last Friday that the U-6 unemployment rate, which includes involuntary part-time workers, defined as “individuals working part time because their hours had been cut back or because they were unable to find a full-time job,” soared from 13.8 percent in May to 14.3 percent in June. That soaring unemployment represents not recovery but renewed recession.

This shift to part time work is only further reducing real middle class incomes, which have declined steadily under Obama’s Presidency. The middle class has lost the equivalent of one month’s income a year under President Obama, and with these employment trends, those declining living standards will continue.

This is directly attributable to the Obamacare employer mandate, which requires employers of 50 full time workers or more to buy the health insurance for their workers that the government specifies they must buy, or pay a $2,000 fine per worker every year. Full time is defined as those working 30 hours a week or more. As a result, many employers are cutting back their workers to 29 hours a week, to avoid the cost increases of Obamacare.

Delaying the employer mandate by one year will not solve this problem, as employers know the Obamacare cost increases are coming. It will just give them more time to rearrange their work forces to further evade Obamacare.



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