A constitutional law professor at George Washington University said that Obama “has been far more aggressive in circumventing Congress and far more successful in creating an imperial presidency” than Bush.
President Barack Obama’s latest legal end run around Congress — delaying enforcement of the employer health mandate — has sparked more questions about whether he’s abusing his executive discretion under the Constitution.
The move announced late Tuesday was the latest in a string of decisions where the president, facing a divided Congress unable to get much done beyond keeping the government running, has taken matters into his own hands.
Where a previous president might have asked for a legislative fix if a mandate was proving too onerous for business, the Obama administration put out a couple of blog posts saying that, in listening to the business community, it decided not to enforce a key part of the 3-year-old health law for another year.
The administration notes that parts of laws are delayed in implementation all the time — including various pieces of the tax code.
A Treasury official said the administration has “longstanding administrative authority to grant transition relief when implementing new legislation like the ACA.”
But three House committees are already looking into the decision, with Republicans complaining about a disturbing trend where the president decides which laws to enforce and which to ignore.
Darrell Issa of California, the chairman of Oversight and Government Reform, called the decision “another in a string of extra legal actions” taken by Obama.
“As a former constitutional law teacher, President Obama must know that this action gets into very questionable constitutional territory,” Issa said in a statement to CQ Roll Call. “It also paves the way for future administrations to simply not enforce parts of Obamacare they don’t believe are functioning well.”
Ways and Means Health Subcommittee Chairman Kevin Brady of Texas announced a hearing July 10 focusing on the administration’s authority to delay enforcement.
And Rep. Phil Roe of Tennessee, the chairman of an Education and the Workforce subcommittee, asked the Congressional Research Service to investigate.
“I believe this administration has made a habit of bypassing Congress and it sets a very dangerous precedent,” Roe said in a statement to CQ Roll Call. “Both Republicans and Democrats should be very concerned, and I will continue to closely monitor these actions and hold the president accountable.”
Rep. Steve King, R-Iowa, said, “If President Obama wants to make changes to Obamacare, he must come to Congress. ... We are a nation governed by laws written by Congress, not memos and blog posts written by bureaucrats.”
In March, Issa complained in a Washington Examiner op-ed that the Obama administration was interpreting the health care law to provide tax credits in health exchanges even if states refused to set them up — contrary to the law’s text.
The fact that most states refused to set up their own exchanges “does not justify the administration’s effort to ignore the plain language of the law,” Issa wrote.
That dispute is currently the subject of a lawsuit filed by the state of Oklahoma.
Meanwhile, critics of the administration suggest the president has increasingly relied on questionable executive actions because he can’t get Congress to bend to his will.
Some executive actions have strong legal precedent — such as a Supreme Court decision affirming the EPA’s ability to regulate carbon emissions, the centerpiece of Obama’s second-term, go-it-alone climate agenda. Others, including aspects of implementing Obamacare and the president’s decision last year to end deportations of young immigrants brought here as children, remain hotly disputed.
“It’s a fascinating transformation for Obama,” said Jonathan Turley, a constitutional law professor at George Washington University who has become one of the administration’s chief legal critics.
“He rightfully criticized President Bush for violating the separation of powers and using signing statements to rewrite legislation, but Obama has been far more aggressive in circumventing Congress and far more successful in creating an imperial presidency,” he said.
Turley, who was a House page in the late 1970s, remembers lawmakers who fiercely defended the prerogatives of Congress even from the president of their own party.
That is rarely the case today.
Turley cited the president’s decision not to enforce immigration laws with respect to young immigrants as a particularly egregious example — and one that was cheered by top Democrats.
“The president disagreed with Congress on immigration law. His response was to effectively negate the law. . . . That rocks our system to the core,” he said.
“What I find curious is how quiet Democrats have been,” he added. “What if this was a Republican president who simply told agencies that they were no longer going to enforce clean air and clean water regulations? They would cry foul. But there is no functional difference between that and what President Obama has done.”
The administration defended ending deportations of young immigrants as a use of prosecutorial discretion.
House Republicans recently voted for an amendment to prohibit funds from being used to implement that order, pitching it as enforcing the rule of law.
But such an amendment is DOA in the Senate and would be veto bait if it reached the White House.
And as for delaying the mandate, the administration is pointing to regulatory precedent, citing Section 7805(a) of the tax code for justification.
That reads, in part, the “Secretary shall prescribe all needful rules and regulations for the enforcement of this title, including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue.”
Precedents cited by the administration include an aviation fuel tax Obama signed Aug. 5, 2011, that applied retroactively to July 23, 2011. The administration delayed enforcement until Aug. 9, 2011.
In 2007, a small-business bill made changes to standards for tax return preparers to avoid paying penalties effective May 25 of that year. But the IRS announced it would not enforce the new rules on returns due before 2008.
Michael Tanner, a senior fellow at the Cato Institute, said Obama appeared to be stretching his authority to the limit.
“It’s less of a frontal assault than it is a flanking maneuver,” he said. “He may be violating the spirit of the law but not necessarily the letter. The legality is up in the air.”
Timothy Jost, a longtime supporter of the health care law and a law professor at Washington and Lee University, defended the mandate decision.
“This is really a question of enforcement and when the administration runs into practical difficulty, it delays enforcement,” he said.
He predicted the administration would get its way in the end.
“I don’t see the courts intervening here. I’m sure Congress will hold hearings but there really isn’t anything they can do.”
Senate Minority Leader Mitch McConnell, R-Ky., carries a musket on stage as he speaks during the American Conservative Union's Conservative Political Action Conference (CPAC) at National Harbor, Md., on Thursday March 6, 2014.