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Obama not even pretending he has legal authority to delay the ObamaCare employer mandate

by Byron York

posted at 5:21 pm on July 29, 2013 by Allahpundit

Via Byron York, an amazing bit buried in the NYT's interview with The One after his economy-speech snooze last week. This is as close as you'll ever get to seeing a pol answer a reporter's question with "because I said so":

NYT: People questioned your legal and constitutional authority to do that unilaterally — to delay the employer mandate. Did you consult with your lawyer?

MR. OBAMA: Jackie, if you heard me on stage today, what I said was that I will seize any opportunity I can find to work with Congress to strengthen the middle class, improve their prospects, improve their security –

NYT: No, but specifically –

MR. OBAMA: — but where Congress is unwilling to act, I will take whatever administrative steps that I can in order to do right by the American people.

And if Congress thinks that what I've done is inappropriate or wrong in some fashion, they're free to make that case. But there's not an action that I take that you don't have some folks in Congress who say that I'm usurping my authority. Some of those folks think I usurp my authority by having the gall to win the presidency. And I don't think that's a secret. But ultimately, I'm not concerned about their opinions — very few of them, by the way, are lawyers, much less constitutional lawyers.

I am concerned about the folks who I spoke to today who are working really hard, are trying to figure out how they can send their kids to college, are trying to make sure that they can save for their retirement. And if I can take steps on their behalf, then I'm going to do so. And I would hope that more and more of Congress will say, you know what, since that's our primary focus, we're willing to work with you to advance those ideals. But I'm not just going to sit back if the only message from some of these folks is no on everything, and sit around and twiddle my thumbs for the next 1,200 days.

Evidently if Congress doesn't do what he wants, he enjoys legal authority under the Doin' Good For The People Clause of the Constitution to do it himself. That's not the first time he's invoked that clause either; remember, he decided to continue his intervention in Libya even though his own lawyers concluded that he had no power to do so under the War Powers Act. There, as here, people on his own side of an issue reached a legal judgment — it was a party-line Democratic vote that passed O-Care into law, of course — and Obama eventually decided that because the law interfered with his policy preferences, he'd quietly ignore it. In the case of the War Powers Act, there was at least a halfhearted attempt to square the Libya intervention with the statute (by insisting that it didn't quite rise to the level of "hostilities" in the meaning of the law). Here there's none. He's telling you to shut up and trust him because suspending the mandate is good policy and because he is, unlike many members of Congress, a lawyer. (More than half the Senate are lawyers, in point of fact.) Let's hear from another lawyer, former appellate judge Michael McConnell, on why O's unilateral suspension of the mandate is so novel and dangerous:

The Justice Department's Office of Legal Counsel, which advises the president on legal and constitutional issues, has repeatedly opined that the president may decline to enforce laws he believes are unconstitutional. But these opinions have always insisted that the president has no authority, as one such memo put it in 1990, to "refuse to enforce a statute he opposes for policy reasons."…

The president defended his suspension of the immigration laws as an exercise of prosecutorial discretion. He defended his amending of No Child Left Behind as an exercise of authority in the statute to waive certain requirements. The administration has yet to offer a legal justification for last week's suspension of the employer mandate.

Republican opponents of ObamaCare might say that the suspension of the employer mandate is such good policy that there's no need to worry about constitutionality. But if the president can dispense with laws, and parts of laws, when he disagrees with them, the implications for constitutional government are dire.

If Bush pulled the "because I said so" shtick in defending his own decision not to enforce a statute, Senator Obama would have screeched about it endlessly, just like he screeched about executive overreach, signing statements, drone warfare, domestic surveillance, and all the other supposed ills of the Bush age that he's ended up adopting. As it is, McConnell's skeptical that any private citizen has standing to sue to enforce the mandate, for the same reason that citizens lacked standing per the Supreme Court's decision in the Prop 8 case. Maybe Congress could sue, but the GOP doesn't want to be seen as forcing the employer mandate on business when Obama's trying to suspend it and Democrats don't want to cause political headaches for O, let alone side with a stupid health-care measure that's apt to have adverse economic consequences once it's in effect. He's going to get away with this and the precedent will be set — or rather further cemented, per McConnell's other examples of Obama power grabs — that when a law is inconvenient for the president politically, even when it's part of his own signature legislation, he can simply ignore it. Because he says so.

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Obama not even pretending he has legal authority to delay the ObamaCare employer mandate
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John Hames