Yesterday, President Obama announced an administrative order intended to allow people who have just had their health insurance plans canceled to keep their current plans another year. Because the government’s health insurance exchange website HealthCare.gov has been severely dysfunctional since its October 1 launch, many people who have lost their current plans are now unable to find out about their options and enroll in new plans in a timely manner.
But can a president simply suspend the implementation of laws by means of a White House press conference? Pacific Legal Foundation principal attorney Timothy Sandefur offers a constitutional perspective:
Now come unilateral administrative delays on the order of the President. Keep in mind what these delays really are—they are not new laws, or amendments to the law…they are orders from the President to his subordinates to simply not enforce laws that are on the books. The Employer Mandate, for example, was “delayed” by an order that simply instructs Executive agencies not to enforce the reporting requirement. A company that fails to comply with that Mandate is still violating the law—it’s just that the President has chosen to look the other way for now.
The Constitution of the United States says that the President “shall take care that the laws be faithfully executed.” That provision was written because the Founding Fathers had experienced the arbitrariness of a government in which the British monarchy picked and chose which laws to enforce and which laws to ignore. The result of such political control over the law was, they knew, a breakdown in the rule of law—and a breakdown that allowed the powerful and politically well-connected to manipulate the system at will. As James Madison warned in the Federalist, “mutable” laws
‘poison the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?’
Unfortunately, today’s administrative state gives so much power to unelected bureaucrats—who are protected against any meaningful control by voters—that they can alter, manipulate, and change the law almost at will. The result is a breakdown in the rule of law and an arbitrary system in which the government operates, not according to predictable standards and meaningful rules, but according to political whim and in arbitrary, day-to-day, ad hoc manner.