Is the Obamacare coalition finally cracking? We ran through the Republican response to the law's unraveling last night. Will Democrats bravely stand shoulder-to-shoulder amidst gale-force political headwinds? Perhaps not. Behold, unusually pointed questions from a retiring Senate Democrat, speaking to the New York Times:
Some Democrats were also dismayed by the White House’s actions. Senator Tom Harkin of Iowa, the chairman of the Senate Health, Education, Labor and Pensions Committee and an author of the health law, questioned whether Mr. Obama had the authority to unilaterally delay the employer mandate. “This was the law. How can they change the law?” he asked. For its part, the White House continued to look flat-footed on the issue. After an almost surreptitious evening announcement of the delay last week, posted on the Treasury Department’s Web site, the White House is declining to send a representative to a House hearing on the decision that is scheduled for Wednesday.
We'll circle back to Harkin's question in a moment, but take a moment to soak in the White House's in-your-face attitude toward its own power grab. This administration has never masked its contempt for the other two co-equal branches of government, and this is just the latest middle finger directed at Congress. Hearings? We don't even recognize your damn hearings! As for Harkin, he's shocked -- shocked! -- that President Obama seems to be issuing decrees from his throne, with little regard for the rule of law. "This was the law. How can they change the law?" he asks, incredulous. Perhaps the Iowa Senator has sleep-walked through the last several years, during which this administration has engaged in selective enforcement of immigration laws, ceased defending an on-the-books marriage law in federal court (prior to this decision), unlawfully re-wrote historic welfare reforms, made "recess" appointments when Congress wasn't in recess, and trampled all over the First Amendment -- all to appease various political constituencies. Welcome to the program, Senator Harkin. Meanwhile, a respected former federal judge endeavors to answer Harkin's question in the pages of the Wall Street Journal. Bottom line, Obama can't:
President Obama's decision last week to suspend the employer mandate of the Affordable Care Act may be welcome relief to businesses affected by this provision, but it raises grave concerns about his understanding of the role of the executive in our system of government. 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." Attorneys general under Presidents Carter, Reagan, both Bushes and Clinton all agreed on this point. With the exception of Richard Nixon, whose refusals to spend money appropriated by Congress were struck down by the courts, no prior president has claimed the power to negate a law that is concededly constitutional.
In 1998, the Supreme Court struck down a congressional grant of line-item veto authority to the president to cancel spending items in appropriations. The reason? The only constitutional power the president has to suspend or repeal statutes is to veto a bill or propose new legislation. Writing for the court in Clinton v. City of New York, Justice John Paul Stevens noted: "There is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes." The employer mandate in the Affordable Care Act contains no provision allowing the president to suspend, delay or repeal it. Section 1513(d) states in no uncertain terms that "The amendments made by this section shall apply to months beginning after December 31, 2013."
"Shall apply." Obama's new and illegitimate arrogation of power will surely snake its way through the courts, and by the time the matter's settled, he'll be coasting toward a very comfortable retirement. In the meantime, liberals' desperation is laid bear. Matt Yglesias is mindlessly slandering conservatives as racist for having the temerity to point out that the president has a history of selectively enforcing laws, while Chuck Todd and Greg Sargent are muttering about Republicans' "sabotage governing." Sargent cites two primary examples, one of which he borrows from Todd. The first is the sequester, which somehow hasn't reduced America to a post-apocalyptic dystopia just yet. In fact, things seem pretty stable, and the White House's feverish warnings have been exposed as rank fear-mongering. Sargent fails to mention that these (admittedly ham-fisted) spending reductions were the White House's idea in the first place, and that the president has threatened to veto legislation that would afford him the flexibility to mitigate the relatively minimal resulting pain. But their big 'gotcha' is Obamacare, where Todd and Sargent are very upset that Republicans aren't helping Democrats implement a law that was jammed down the country's collective throat, against the public's wishes. Sabotage! Let's review a few facts: Democrats -- and only Democrats -- crafted, advocated, voted for, and signed this law. Whether they like it or not, they own every part of it. If the Left thinks the "Republican obstructionism" card will suddenly become an effective rhetorical tool in the Obamacare fight, they're delusional. I'll let Phil Klein land the first blows:
@ThePlumLineGS So, it's okay to ignore the law to implement Obamacare, but it's unfair to work within the law to resist Obamacare. Got it.— Philip Klein (@philipaklein) July 9, 2013
President Obama's law is collapsing on its own. The White House, not Republicans, has delayed and put off its various provisions. And Democrats have helped repeal several ludicrous elements of the law, such as the CLASS Act scheme, and the ruinous 1099 reporting provision. Democrats can whine all they want about some Republican governors refusing to go along with Obamacare's reckless expansion of Medicaid. But these governors are only able to exercise that option because the law's Medicaid mandate -- dreamed up and backed entirely by Democrats -- was ruled unconstitutional by a 7-2 Supreme Court majority. Republican obstructionism! Liberals also growl that many governors declined to set up Obamacare exchanges in their states, leaving the feds to pick up the slack (which they're failing to accomplish in time). These chief executives' freedom to say "no thanks" was written into the law. If Democrats are angry about that, they have nothing to blame but their own sloppiness. This law is unworkable because it's terrible legislation, not because Republicans don't like it.