Obama the scofflaw

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Is obeying the law optional?

President Barack Obama seems to think it is -- at least insofar as it applies to him.

The administration announced this month that it plans to delay enforcement of the provision in Obamacare which requires employers with 50 or more full-time employees to provide them with health insurance (which contains certain government-mandated provisions), or pay a fine of $2,000 per worker.

Section 1513(d) of the Obamacare law states clearly that "The amendments made by this section shall apply to months beginning after December 31, 2013."

This is important because the Constitution says the president "shall take care that the laws be faithfully executed" (Article II, Section 3).

"This is a duty, not a discretionary power," wrote former federal appeals court judge Michael McConnell in The Wall Street Journal. "While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so."

The Supreme Court agrees. Allowing the president to refuse to enforce laws passed by Congress "would be clothing the president with a power to control the legislation of Congress, and paralyze the administration of justice," the court said in Kendall v. United States (1838).

In 1998, the Supreme Court ruled that a law passed by Congress to permit the president to veto individual items in spending bills was unconstitutional because "there is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes" (Clinton v. City of New York).

This was no oversight. The Founers knew well that King James II of England was deposed in large part because he refused to enforce laws passed by a Parliament he didn't like. They wrote Article II, Section 3 to keep such an abuse from happening here, Mr. McConnell wrote.

It's happening here now. The employer mandate isn't the first time the administration has decided to delay enforcement of a provision of Obamacare and won't be the last, says the National Journal.

Most of the delays in enforcement of Obamacare provisions can be attributed to a clash between the health care law and the law of unintended consequences, said Fox News analyst Brit Hume.

"Businesses are changing their hiring practices to try to avoid having enough employees to be under the mandate," Mr. Hume said. "So you're getting an explosion in the hiring of part-time workers. Well, this is certainly not what the administration intended or the Democrats in Congress who rammed the bill through intended. So this is a situation where the law as written probably can't work."

Obamacare "is being undermined by its own inner logic and by the inescapable realities of its implementation," wrote Robert Tracinski of RealClear Politics.

"The Obama administration -- in yet another health care overhaul delay -- has quietly notified insurers that a computer system glitch will limit penalties that the law says the companies may charge smokers," CBS News reported Tuesday. "A fix will take at least a year to put in place."

But incompetence is by no means the only reason. The employer mandate is being delayed primarily to conceal from voters until after the midterm elections the job losses it is likely to cause, a source in the Treasury Department told the London Daily Mail. And the administration issued an open invitation to fraud when it announced last week it will delay enforcement of eligibility requirements for tax credits intended to help people pay their premiums under Obamacare. The administration wants to go forward with the subsidies even though it has no means of determining whether those who'll get them are entitled to them. Why? Because that would buy votes for Democrats in the midterms.

Mr. Obama was behaving like King James II last year when, after Congress explicitly declined to pass a law granting him authority to do so, he announced he would stop deporting some illegal aliens if they came here before age 16. And again when he set his own rules for state compliance with the No Child Left Behind Act as opposed to those set in statute by Congress.

The economic consequences of Obamacare are a very big deal, but selective enforcement of its provisions is a bigger deal, because this strikes at the heart of the bulwarks of democratic government -- the rule of law and the separation of powers.

Democrats who excuse or applaud Mr. Obama's scofflaw behavior should consider the precedent he's setting. What's to prevent a future Republican president from refusing to enforce laws he doesn't like?

And if our leaders won't obey the law, why should we?


Jack Kelly is a columnist for the Post-Gazette (jkelly@post-gazette.com, 412-263-1476).


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