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Opinion

Lawlessness is now the dominant theme in the Obama saga

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Opinion,Congress,Op-Eds,Barack Obama,Executive Branch,Supreme Court,Constitution,Executive Action

For years, critics of President Obama and his administration have complained about a rising disregard for the rule of law.

The rule of law means that the public can expect the executive branch to honor the laws passed by the people's representatives in Congress, as well as the limitations placed on government in the Constitution, as amended.

It is a fundamental founding principle that the executive branch, while it has substantial power, is not to be a law unto itself.

In the context of implementation of legislation, the executive branch historically has been allowed some discretion as to the timing and manner of enforcement.

Yet, this discretion itself may be subject to abuse when flexibility as to implementation gives way to political considerations.

In May 2014, Sen. Ted Cruz, R-Tx., released a list of 76 Obama administration actions or failures to act that Cruz termed lawless.

Figuring prominently on Cruz' list were Obama administration unilateral actions on immigration, including implementing “portions of the DREAM, which Congress rejected, by executive action.”

The administration has once again signaled an intention of unilateral action, with Obama declaring that he would implement immigration reform "on my own, without Congress."

On Obamacare, in June 2012, the individual mandate was upheld as constitutional by the Supreme Court on sharply divided lines, based on the congressional power to tax.

Yet, the Obama administration has treated the Obamacare legislation itself as at most a guideline, altering the terms as needed.

The Galen Institute lists 23 changes to Obamacare imposed by Obama administration fiat, without congressional approval, including: Delaying the individual mandate, the small business exchanges, and employer mandate reporting; implementing a Medicare Advantage patch using funds allocated to other purposes; and allowing subsidies to flow through federal exchanges even though not authorized.

A unifying feature of the Obamacare unilateral administrative changes was to postpone negative effects of Obamacare until after the 2014 election.

In so doing, the administration was not acting within allowable discretion to implement the law, but rather, using political criteria to dictate which parts of the law would be enforced and which parts ignored for political reasons.

The decisions of the current Supreme Court term reflect the extent to which the Obama administration has disregarded the rule of law.

There have been at least 12 cases involving administration action in which the justices have ruled unanimously against the administration.

This from a court notoriously divided along “liberal” versus “conservative” lines on a slew of important decisions. Yet when it comes to administration overreach, the justices found a measure of unanimity.

The court's recent decision involving Obama's “recess appointments” to the National Labor Relations Board is instructive.

The case involved appointments during a brief 3-day period when the Senate was in “pro forma” business sessions, yet Obama decided on his own that the Senate was in recess.

The administration thus helped itself to determine for the Senate when the Senate was in session, contrary to the Senate’s inherent power to determine its own rules.

While the justices were not unanimous on the scope of executive branch recess appointment powers, they were unanimous that the administration’s attempt to utilize recess appointment powers during this 3-day break between pro forma business sessions was an improper power grab.

Overall, the Obama administration is having a miserable term at the Supreme Court, even aside from these unanimous rejections of its positions.

While the government typically wins 70 percent of the cases at the Supreme Court, this term its win percentage is only 39 percent of the cases in which it was a party.

The Supreme Court's decision in the Hobby Lobby case, finding that the Obamacare contraception mandate was invalid in some circumstances, was a fitting end to a term in which the high court handed the administration one high profile loss after another.

There always is an uneasy balance between the executive branch and the Congress. That balance is upset when the executive branch treats legislation as a mere enabler and not as binding law, and when the executive branch engages in power grabs at the expense of the Congress and citizens.

It is that disregard for the rule of law that has become the central narrative of the Obama administration.

William A. Jacobson is clinical professor of law at Cornell Law School, and publisher of Legal Insurrection Blog.
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