What Constitution? A round-up of the Obama administration's executive overreach

Tuesday, March 11, 2014
By: RJC Communications Director Shari Hillman

George Washington and James Madison are spinning in their graves. Both men helped to define the power of the President as a limited executive bound to “take care that the laws be faithfully executed,” in the words of the Constitution, and as one who does not have the power to make laws, amend laws, or set aside laws on his own. Then came Barack Obama.

Over the last five years, Pres. Obama has essentially made, amended, and set aside laws by executive fiat. The list of his administration’s unilateral actions exceeding the power of the Executive Branch is quite long. In his 2014 State of the Union address he promised to continue to act on his own, without Congressional authority or support, to move his agenda forward.

In some cases, the President has taken actions that go precisely counter to the language of existing law.

The Obamacare law gives a specific date for the employer mandate to kick in. By January 1, 2014, medium and large businesses were required to provide health insurance to all full-time employees, with the attendant paperwork and the costs for non-compliance. President Obama has twice delayed the employer mandate, without any change in the law.

The welfare reform act signed by President Clinton in 1996 required that a certain percentage of able-bodied adults receiving welfare benefits be working or preparing for work. This change succeeded in helping millions get into the workforce and out of poverty. The law specifically forbids the waiver of the work requirements, yet in 2012, HHS announced that states could ignore those requirements and replace them with new standards invented by the Obama administration without congressional action.

In other cases, the President has chosen not to enforce existing law, without any action by Congress to repeal or amend the law.

President Obama instructed federal officials not to enforce immigration laws on a certain group of people who are in this country illegally: nearly all of the estimated 1.7 million people who came to this country before the age of 16. This is the cohort that would have been protected from deportation under the DREAM Act, an Obama administration priority that Congress rejected twice. With his legislative agenda on the issue stymied, the President unilaterally narrowed the reach of existing law as if the Dream Act had passed.

When Americans realized that the President’s promises about keeping your health care plan and your doctor were lies, Pres. Obama tried to “fix” the problem by instructing insurance companies that they would not be penalized for continuing to sell policies that did not meet the standards set out by Obamacare, plans that were therefore illegal after January 1, 2014. State insurance commissioners and insurers balked at the offer.

The Obama Justice Department has instructed the U.S. Attorneys in those states that have legalized marijuana that they should not prosecute marijuana buyers and sellers whose conduct violates federal drug laws. The Supreme Court has upheld the federal Controlled Substance Act as the controlling law when it conflicts with state law, but the President is here again refusing to enforce federal laws against a particular group of people.

In education, the President has used executive power to replace elements of existing laws he doesn’t like with federal “guidelines.”

The No Child Left Behind (NCLB) Act conditions federal funding to public school districts on their meeting certain state-defined educational goals. Some states worried that they would not meet the required goals by the law’s deadline. Pres. Obama told the states that they could request a waiver from those requirements in exchange for implementing the administration’s controversial Common Core standards instead. While the Secretary of Education has the authority under NCLB to waive the requirements for a state, there is no provision in the law for the Secretary to substitute some other, federal standard for the state-defined standards mandated under NCLB.

President Obama has unilaterally acted in contravention to existing law for political reasons, timed around election campaigns.

There are several examples of this, including the President’s decision to delay the Obamacare employer mandate until after the2014 election. Another example comes from the summer of 2012. That July, the Department of Labor told employers that they did not need to issue the legally-required 60-day notices to employees who were being laid off as a consequence of the “sequester,” the automatic spending cuts provided for in the agreement that ended the 2011 debt ceiling standoff in Congress. Those notices are required by the Worker Adjustment and Retraining (WARN) Act of 1988.

In addition, the Office of Management and Budget told government contractors that the government would cover certain legal costs they would incur if employees who were laid off because of the sequester sued the companies for not issuing timely notices. Those notices should have gone out just days before the 2012 election. The administration strongly encouraged major defense contractors such as Lockheed Martin to break the law so that the layoff notices wouldn’t hurt the President’s image before Election Day. Defense contractor L-3 Communications has since been sued by former employees over the lack of WARN notices.

President Obama’s actions to change and ignore existing law have been labeled “abusive,” “unlawful,” and “unconstitutional” by legal scholars and legislators on the right, while the left has almost uniformly hailed those actions as policy triumphs. When the rule of law is ignored for political purposes, the people and their representatives must act. Voters should remember these abuses of power when they cast their ballots so that Congress – and future Presidents – can bring back into their proper balance the powers and prerogatives of the separate and equal branches of our government, as set out in our Constitution.

This article appeared in the January-February 2014 issue of the
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