“The seriousness of this matter may rest on which side of the President’s decision you stand…”
Speaker John Boehner’s resolution to sue President Obama centers on the President’s one-year waiver of the mandate in the Affordable Care Act requiring employers with 50 or more employees to provide health insurance. The rhetoric surrounding the suit centers on the belief that the President did not, under the Constitution (Article II, Section 3), “…take care that the laws be faithfully executed,”. Despite the ACA passing against the wishes of most Hill Republicans it is a law, and waiving a provision without congressional approval under some circumstances is done in excess of the President’s authority, suit supporters holds and they are technically correct.
The announcement to waive the employer mandate was made on July 2, 2013 on the US Treasury website with this explanation, “First, it will allow us to consider ways to simplify the new reporting requirements consistent with the law. Second, it will provide time to adapt health coverage and reporting systems while employers are moving toward making health coverage affordable and accessible for their employees.”
The US Chamber of Commerce wrote “… the employer mandate threatens to penalize businesses for failing to offer affordable coverage, when—more than ever—people need jobs and employers need help growing and should be encouraged to hire more employees. This law does the opposite at a dangerous time.”
According to constitutional scholar Simon Lazarus in The Atlantic (July 17, 2013), on July 9, 2013 Assistant Treasury Secretary Mark Mazur wrote in explanation of the President’s decision ‘such temporary postponements of tax reporting and payment requirements are routine…by Republican and Democratic administrations when statutory deadlines proved unworkable.’
Lazarus said further, “…applicable judicial precedent places such timing adjustments well within the Executive Branch’s lawful discretion. To be sure, the federal Administrative Procedure Act authorizes federal courts to compel agencies to initiate statutorily required actions that have been “unreasonably delayed.” But courts have found delays to be unreasonable only in rare cases where, unlike this one, inaction had lasted for several years”
Here is how the matter unfolded on Capital Hill after the Treasury Department announcements –
On July 12, 2013 Rep Scott Garrett (R-NJ-5th) introduced HCR 45 ‘Expressing the sense of Congress that President Barack Obama has violated section 3 of article II of the Constitution by refusing to enforce the employer mandate provisions of the Patient Protection and Affordable Care Act.’ The bill was referred to a House sub-Committee where it remains.
On July 17, 2013 the House passed on near party line votes two bills; HR 2668 allowing for the delay of the individual mandate that was not considered in the Senate and HR 2667 allowing for the delay of the employer mandate which was read twice on the Senate floor, put on the calendar but was not further debated.
House Republicans and some Democrats see the employer mandate as government intrusion or overreach and large employers don’t like it. The President did something about that while House Republicans had over a year to bring this matter to light but did not until now. Strategists, no doubt, saw a benefit in bringing this suit shortly before the midterm elections.
The seriousness of this matter may rest on which side of the President’s decision you stand, but if you remove the hyperbole from both sides the solution would have not so much drama as the law suit would to suggest. There is a legislative solution but this lawsuit is not it. The Senate should agree to HR 2667 and the President should sign it into law. Boehner’s suit will not unseat the President nor will it become a precedent for future presidencies to abide. Instead we will just spend money on political maneuvering.
There’s an Alternative to the Imperial Presidency
By Lee H. Hamilton
“Without a strong Congress able to find its way effectively through the thickets of lawmaking, this President and his successors will surely continue to address the nation’s challenges on their own.”
(This is a reprint of Hamilton’s Feb. 2014 column)
In his State of the Union speech to Congress last month, President Obama drew widespread attention for pledging to use his executive authority to advance his priorities. He insisted he intends to act with or without Congress, and listed well over a dozen actions he plans to take by executive order. “Wherever and whenever I can take steps without legislation to expand opportunity for more American families,” he said, “that’s what I’m going to do.”
Plenty of people were happy about this. The speech was applauded by pundits who have given up on Congress and believe the only way to move forward is by strengthening the presidency. Our political system, they say, is weighed down by too many interest groups, too many checks and balances, and too few avenues for circumventing a Congress that is both polarized and highly susceptible to the wishes of its donors. The present government is paralyzed, they believe. A stronger presidency would get Washington moving again.
As you’d expect, others are alarmed by this approach. The President, they say, is trampling on the constitutional separation of powers, grabbing powers for himself that were meant to be shared with Congress. They point out that the Constitution gives Congress a primary role in making policy.
The problem with this debate is that it’s missing a key part of the equation. Yes, our system needs a strong presidency. But it also needs a strong Congress. We are best off as a nation when the two consult, interact, and work together as powerful branches.
In truth, every president in recent memory has expanded the power of his office and been accused of a power grab. They’ve had plenty of motivation to do so. The modern world demands quick, decisive action. Americans tend to support presidents who act forcefully. Congress is complex, convoluted, and hard to work with; it is far easier for an administration to act on its own. Even members of Congress often defer to the President, counting on him to address issues they don’t want to tackle or can’t agree upon.
And presidents have wielded executive orders to great effect. Abraham Lincoln’s Emancipation Proclamation, FDR’s Works Progress Administration, John Kennedy’s Peace Corps, affirmative action under Kennedy, Lyndon Johnson and Richard Nixon, Ronald Reagan’s enshrining of cost-benefit analysis as the key to regulatory review — all came about through executive orders.
Yet there are limits to this approach, because in the end there is no substitute for legislation. Presidents cannot write a budget, raise the minimum wage, or reform entitlements by themselves. Because executive orders lack the permanence and force of law, they can be hard to implement and can be summarily cancelled by a later president. They are more subject to legal challenge than legislation. And most important, executive orders are a unilateral exercise of power and do not benefit from a process of consensus-building and consultation with voices independent of the President’s.
Consensus-building can’t happen in a vacuum, however. Without a strong Congress able to find its way effectively through the thickets of lawmaking, this President and his successors will surely continue to address the nation’s challenges on their own. The question is, how far down that road can we go before Congress becomes irrelevant, with too much power — and too much potential for the abuse of power — in presidential hands? Like our founding fathers, we should be skeptical of the concentration of power.
Politico recently detailed a spate of executive orders planned by this administration, which would affect everything from how power plants operate to how we commute to how the environment will be regulated. Taken together, they will “push deeply into everyday life” for Americans, the article noted.
Whether a president oversteps his authority with these and other executive orders is inevitably colored by whether you agree with the proposed order. But my point is different. It is that the march toward presidential unilateralism, whether the president is a Democrat or a Republican, dangerously undercuts our constitutional system. Before we give up on the separation of powers, let’s try strengthening Congress. This may not be the easy route, but if we don’t take it, representative democracy itself is in doubt.
Lee Hamilton is Director of the Center on Congress at Indiana University. He was a member of the U.S. House of Representatives for 34 years.
Lee Hamilton Receives Distinguished Service Award From U.S. Association of Former Members of Congress
BLOOMINGTON, Ind., July 16 — Lee H. Hamilton, Director of the Indiana University Center on Congress, today received the 2014 Distinguished Service Award of the U.S. Association of Former Members of Congress (FMC) at the group’s 44th annual meeting in Washington, D.C.